LIBRARY,
,
TREATISE
OW THE
LA¥ OF THE CHURCH,
" IDEM REGIMEN EADEM FIDES IDEM SACRAMENTORUM NUMERUS
EADEMQUE EORUM ADMINISTRANDI FORMA IIDEM ETIAM RITUS
EJEDEM LEGES— EADEM FESTA ET JEJUNIA J OMNIA DENIQUE
ADEO HABENTUR, CONSTITUUNTUR, PRJEDICANTUR, UT JURE MERI-
TO PRIMITIVA NUNCUPETUR ECCLESIA, ULTIMIS HISCE TEMPORIBUS
Epistola Dedicatoria Beveregii ad Codicem Canonum.
TKEATISE ON THE LAW
OF THE
PROTESTANT EPISCOPAL CHURCH
IN THE
UNITED STATES.
BY MURRAY HOFFMAN, ESQ.
NEW-YORK:
STANFORD AND SWORDS, 137, BROADWAY.
1850.
Bx
Entered according to Act of Congress, in the year 1850, by
STANFORD AND SWORDS,
In the Clerk's Office of the District Court of the United States for
the Southern District of New-York.
HOBART PRESS :
J. R. M'GOWN, PRINTER,
57, ANN-STREET.
21-.ti.1o
f\ . ^ , —
NOTICE.
The following" work may be considered as complete in it
self, although a considerable body of canons and Church sub
jects are not discussed. These relate chiefly to the ordering
of the ministers of the Church, and other analogous topics.
The author hopes to be able to issue a further volume shortly,
with an Index to the whole work.
NEW- YORK, SEPT. 1850.
TABLE OF CONTENTS.
INTRODUCTION.
PAGE.
13
14
14
31
48
Of the Law of the Church, -
Of the Church of England in the Colonies,
Identity with the Present Church, - -
Action of the Churches in the States after the Revolution,
The Church the same in Discipline as in Doctrine after the Revo
lution as before, .... - 40
What the English Ecclesiastical Law is,
Four Important Periods in its History, ...
Application of the Doctrine of the Force of English Law to some
Particular Cases, - . - 66
CHAPTER I.
THE CONSTITUTION OF THE CHURCH, AND THE GENERAL CONVENTION.
PAGE.
TITLE I. The Constitution — Its History and Construction, 87
§ 1. Powers of the General Convention, - - 97
§ 2. Of that of 1789, - - 97
§ 3. Of that Body subsequently, - - 110
TITLE II. The Articles of the Constitution, 128
ARTICLE I., ... 128
§ 1. Of Diocesan and other Councils, - 129
$ 2. Of Special Meetings of Convention, - 139
§ 3. Of a Quorum, 140
ARTICLE II., ..... 141
§ 1. Number of Deputies, - 142
$ 2. Body to Choose, - - 142
$ 3. Mode of Choosing, - - 144
§ 4. Vote by Orders, - - 149
§ 5. Case of Absent Delegates, - - 150
CONTENTS.
ARTICLE III.,
ARTICLE IV.,
§ 1. Mode of Choice of Bishops,
$.2. Restrictions of Jurisdiction,
ARTICLE V., ...
ARTICLE VI.,
ARTICLE VII.,
ARTICLE VIII. . -
ARTICLE IX.,
CHAPTER II.
PAGE.
152
155
155
158
159
163
166
167
172
OP THE CONSTITUTIONS AND CONVENTIONS OF THE DIOCESES.
TITLE I. General Objects and Nature of the Constitutions, 179
TITLE II. Members of Conventions and their Qualifications, 182
§ 1. Union of Clergy and Laity, - 184
§ 2. Settled Clergymen, - - 185
§ 3. Missionaries, ... 187
§ 4. Professors, - 187
§ 5. Chaplains of Army and Navy, - - 188
§ 6. Residence, - - 188
§ 7. Former members, - - 189
§ 8. Lay Delegates — Number and Qualifications, 190
TITLE III. Evidence of Membership, 192
§ 1. List of Clergy, - 192
§ 2. Evidence of Lay Membership, - 197
§ 3. Mode of Choosing Lay Delegates, - 199
TITLE IV. Officers and Committees of Conventions, - 200
§ 1. Presiding Officer — His Authority and Duties, 200
Power on Questions of Order, - - 203
§ 2. Secretary of Convention, - 205
§ 3. Treasurer, - - 207
§ 4. Standing Committees, - 208
Origin, - - - 209
Members, - 212
Powers and Duties, - 213
§ 5. Committees other than Standing Committee, 219
TITLE V. Regulations of Legislative Action, - 221
§ 1. Quorum, 221
§ 2. Mode of Voting, - • - 221
CONTENTS.
CHAPTER III.
OF PARISHES THEIR SEPARATION AND DIVISION AND THE
ORGANIZATION OF CHURCHES OR CONGREGATIONS.
TITLE I.
TITLE II.
TITLE III.
TITLE IV.
TITLE V.
TITLE
TITLE
VI.
VII.
TITLE I.
Ones, and the Buildiug of Churches,
The Building New Churches,
The Organization of Churches,
§ 1. Incorporation under Civil Laws,
Who may Unite,
First Election, -
Notice of First Election,
Presiding Officer,
Election and Certificate,
$ 2. Articles of Association,
§ 3. Subsequent Elections,
Qualification of Voters,
Times of Elections,
The Vestry as Trustees — Power and Office,
§ 1. Corporate Character,
§ 2. General Powers,
§ 3. Alienation, ...
§ 4. Right over Pews,
§ 5. Vaults, -
$ 6. Tenure of Office,
§ 7. Meetings of the Vestry.
§ 8. Duty as to Account,
The Rector. -
$ 1. Right to Preside,
§ 2. Right to the Glebe, &c.,
Wardens and Vestrymen,
§ 1. Wardens, ...
$ 2. Vestrymen, •
§ 3. Eligibility of Vestrymen,
Union of a Church with the Convention,
Union of a Congregation with One in
Diocese, -
CHAPTER IV.
Election and Institution of Ministers,
280
1*
10
CONTENTS.
PAGE.
$ 1. The Certificate or Notice of Election, - 281
§ 2. The Inquiry into the Sufficiency of the Party, 282
§ 3. The Method of Inquiry, - 285
§ 4. Institution or Induction, - 286
TITLE II. Of Parochial Instruction, 294
TITLE III. Of the Keeping a Parish Register, - 295
TITLE IV. Duty of Ministers on Episcopal Visitations, - 299
TITLE V. Of the Use of the Book of Common Prayer, - 317
CHAPTER V.
TITLE I. Differences between Ministers and Congregations, 321
$ 1. Application — By whom, - - 323
§ 2. Notice of the Application, 326
$ 3. Nature of the Disputes, - - 327
§ 4. Who are to be Summoned, 328
TITLE II. Dissolution of the Pastoral Connection, - 331
TITLE III. Relinquishment of the Ministry, - - 337
§ 1. Cases within the Canon, - - 338
§ 2. The Form of Renunciation, - - 345
§ 3. Ecclesiastical Proceeding Depending, - 347
$ 4. Clause as to Moral Standing, - - 352
TITLE IV. Of a Minister Absenting Himself from his Diocese, 356
TITLE V. Of the Removal of a Minister from One to Another
Diocese, &c., ... 353
TITLE VI. Of a Clergyman in any Diocese chargeable with
Misdemeanor in any Other, - - 363
TITLE VII. Of Ministers officiating in the Cures of other Cler
gymen, - 365
TILLE VIII. Of Persons officiating not Members of the Church, 380
CHAPTER VI.
OF THE PENAL LAW OF THE CHURCH.
TITLE I. Amenability of Ministers,
TITLE II. Of Punishable Offences,
TITLE III. Mode of Trial, . -
§ 1. Presentment or Charge,
Form of Presentment, -
§ 2. Board or Court of Triers,
384
387
395
395
401
404
CONTENTS.
11
PAGE.
§ 3. Mode of Proceeding, - 407
§ 4. Counsel, 409
§ 5. Notice — Citation — Service, - 410
$ 6. Refusal or Neglect to Appear, - 410
$ 7. Confession, - - 412
§ 8. Publicity of Trial, 412
§ 9. Number of Witnesses, - 413
§ 10. Decision or Judgment, - 413
TITLE IV. Of Sentences, - - 417
Deprivation, - - - - 417
§ 1. Admonition, - - 417
§ 2. Suspension, 418
Suspension pendente lite, - - 423
§ 3. Degradation, .... 426
§ 4. Excommunication, - - 430
§ 5. Removal of a Sentence, 433
TITLE V. Of Lay Discipline, - 435
$ 1. Crimes and Scandals to be Censured, - 435
§ 2. Method of Inquiry, - - 441
§ 3. Provisions in Some Dioceses, - 450
TITLE VI. Trial of a Bishop, - - 455
TITLE VII. Ecclesiastical Jurisdiction, and Effect of a Sentence
in the Civil Courts, ... 457
ERRATA*
Page 43, Line 1. For " ne cullum," read nee idlum,
" 72, « 21. For "Gilbert," read "Gibert"
" 116, « 4. Strike out the word " fifth."
" " " 13. Do. Do. "Canon."
" 181, " 9. Of Note, for partialaribus read provincialibus.
" 139, " Strike out the 9th line— Insert after the word " a " on the 10th
line, the words " Special Convention."
« 168, " 4th from the bottom, strike out " and."
« 227, « 17. For " porra," read porro.
" 231, « 22. For " prohibitimem," read « prohibitionem."
"273, " 20. For "ever," read "even."
" 283, " 4. For " promosendum," read " promovendum."
"284, " For "quaersela," read "quasrela."
« 441. " 27. For " urges," read " argues."
" 451. " 14, After word " convention," insert word " as."
Pages 417, 418, and 419 are misprinted for pages, 415, 416, 417.
The author suggests the expediency of making these alterations with a pen. 1
INTRODUCTION.
OF THE LAW OF THE CHURCH.
THE laws and regulations concerning the discipline of the
Protestant Episcopal Church of the United States may be
thus arranged :
1st. The Constitution and Canons of the General Con
vention, forming a code for the uniform government of every
Diocese and every Church.
2d. The Constitution and Canons of the several Dioceses,
of force only within their several precincts, and generally
subordinate to the power of the General Convention.
3d. The Rubrics of the Church, and in some particulars,
the Articles.
4th. The civil laws of the states affecting the Churches
and their members, in regard to corporate or personal rights,
civil privileges, and the acquisition and preservation of pro
perty.
5th. And to these, in my judgment, is to be added a por
tion of the Ecclesiastical Law of England ; of that law strictly
so called, and distinguished from what in that kingdom is
known as the Foreign Canon Law.
The Constitutions and Canons, and those portions of tho
2
14 INTRODUCTION.
laws of the states which are applicable, will be hereafter
stated and discussed. I shall seek in this introduction to
prove that the Ecclesiastical Law of England has an actual
force and operation in the system of our Church — to point
out the extent of that operation — its limits and qualifications.
But in order to understand, as well as to illustrate the
meaning and the limitations of the proposition, it is necessary
to enter somewhat at length into the history of the Colonial
Church.
OF THE CHURCH OF ENGLAND IN THE COLONIES.
It is an admitted maxim that the great body of the com
mon law of England, and of its statute law so far as adapted
to the situation of the colonies, was brought to this land from
the mother country, and formed the basis of colonial law.1
1 Chancellor Kent thus states the doctrine: — {: Although the
great body of the common law consists of a collection of principles, to
be found in the opinions of sages, or deduced from universal or im
memorial usage, and receiving progressively the sanction of courts, it
is nevertheless true that the common law, so far as applicable to our
situation and government, has been recognized and adopted as an en
tire system by the constitutions of New-York, Massachusetts, New
Jersey and Maryland. It has been assumed by the courts of justice, or
declared by statute, with the like qualifications, as the law of the land
in every state. It was imported by our colonial ancestors as far as it
was applicable, and was sanctioned by royal charters and colonial
statutes. It is also the established doctrine, that English statutes,
passed before the emigration of our ancestors, applicable to our situa
tion and in amendment of the law, constitute a part of the common
law of this country." (Commentaries, vol. 1st, p. 472.)
The rule is admirably expressed by Mr. West in an opinion given
in 1720. " The common law of England is the common law of the
plantations, and so all statutes in affirmance of the common law ante
cedent to the settlement of a colony, unless there is some private act
to the contrary; though no statutes made since those settlements are
there in force, unless the colonies are particularly named. Let an
Englishman go where he will, he bears as much of law and liberty
with him as the nature of things will bear/' (CHALMERS' OPINIONS OF
Eminent Lawyers, vol. 1, p. 194. See also Atty. Gen. Stuart 2
INTRODUCTION. 15
Now this great principle, which pervaded every colony
founded by Englishmen, prevailed, in a particular sphere,
wherever a Church upon the basis of that of England, was
established. They who belonged to such a Church were
members of that of England at the time of their arrival, or
voluntarily joined it here. The former brought with them —
the latter adopted — the doctrine and discipline, the rules and
order of the English Church.
Undeniable as this proposition seems to be, yet it is
necessary, by a fuller statement, to guard it from mistake.
The proposition is not, that the Church as an establishment,
with the statutes of supremacy and uniformity, formed part
of the law of the colonies, where the charters did not other
wise provide ; but the proposition is, that all members of the
Church of England in the colonies were subject to the eccle
siastical law of England, except where it was expressly
altered or necessarily inapplicable.
Under the colonial government in New-York some suits
were instituted involving the question as to the force of the
statues establishing the king's ecclesiastical supremacy,
Merivale, 143. And more particularly as to ecclesiastical law — in a
case of Gaskins vs. Gaskins, (3 Iredell's Law Rep. 155. N. Car.) the
Chief Justice said : " Testaments existed at the common law. ami
their validity depended upon principles declared by that law, or rather
by the canon law as part of that law administered in peculiar juris
diction, that is to say, the ecclesiastical courts. It was argued at
the bar, that although this might be the law of England, yet since the
jurisdiction is here changed to a common law court and jury, nothing
short of publication by execution will sustain even a will of person
alty; but we cannot accede to this argument, for although the juris
diction be changed the rule of decision is not. The canon law is a
part of the common law, so far as respects testamentary causes, and
except such changes as may have been produced by statutes. We
now determine here what is a good will of personal property, exactly
upon the same principles that prevailed when the governor took the
probate of wills. .or before the ecclesiastical judge in England." See
also Bogardus vs. Trinity Church, 4 Paige's Rep. 178.
16 INTRODUCTION.
the acts of Conformity, and consequently those of Toleration.
The case of McKennie, in 1707, was one, and in 1723 the
subject was warmly agitated. A statement of some of the
topics and arguments which were then urged upon the sub
ject is contained in the note.1
Some criticism might fairly be made as to the effect and
meaning of part of the authorities stated ; but conceding
that they are unanswerable, yet it is clear, that the question
of the force of the laws of the Church of England upon that
Church in the colonies is wholly unaffected. What laws
Churchmen brought with them, or submitted to for the regu-
1 SMITH'S History of New-York, III. et. seq. Mr. Smith states,
" The Episcopalians pretend that the ecclesiastical establishment in
South Britain extends here, but the whole body of Dissenters are
averse to the doctrine. The point has been discussed with great fer
vor, and the sum of the arguments against it is contained in a late
paper. It was published in September, 1753, under the title of the
ludependent Reflector."
Among the authorities cited in this paper is an extract from a
sermon stated to have been preached by Dr. Bisse, Bishop of Hereford,
in 1757, before the Society for the Propagation of the Gospel, in which
he owned that the government at home did not interpose in the case,
or establish any form of religion. He quotes also a letter from the
Lords Justices to Governor Dummer in 1725, in which they say there
is no regular establishment of any national or provincial Church in the
plantations. And the authority of Bishop Gibson is also cited, con
tained in a letter to Dr. Colman. of May, 1735. "My opinion has
always been, that the religious state of New England is founded on
an equal liberty to all Protestants, none of which can claim the name
of a National Establishment, or any kind of superiority over the rest.77
Dr. HAWKS (vol. 1, p. 109) states that Mr. Davies. about 1745. ob
tained an opinion from the Attorney General, Sir Dudley Ryder, that
the English Toleration acts extended to Virginia. Smith observes
(Hist. N. Y., 191) that Counsellor West gave an opinion in 1724, upon
being consulted by the Board of Trade, " that the acts of Uniformity
did not extend to New-York, and consequently an act of Toleration is
of no use in that province." It would seem, then, that an English
Act of Toleration would supersede a Virginian Act of Uniformity, a
point doubtful at least.
See also WILBERFORCE'S Colonial Church, 112, in which the opinion
of the Lords Justices is also stated.
INTRODUCTION. 17
lation of their spiritual, and incidental secular relations, is a
wholly different question from that of the prevalence of a law
regulating the worship of every colonist.
The result to which these observations lead, viz., that the
Church of England in the colonies was subject to all the
laws of that of England which could apply to its situation,
will be established by a glance at its settlement and course.
I proceed to state the legal position of that Church, and
to notice various historical facts illustrating its connection
with that of England, and bearing upon the proposition
advocated.
It is first to be noticed that in those colonies in which any
preference or superior privilege was bestowed upon the
Church, it was by laws emanating from the provincial legis
latures themselves.
Thus the colony of New- York, after the charter to the
Duke of York was granted, was governed for several years
(1664 to 1683) by a code known as the Laws of the Duke of
York. The 4th section of the title, Church^ runs thus —
" That no minister shall be allowed to officiate, within the
government, but such as shall produce testimonials to the gov
ernor, that he hath received ordination either from some
Protestant bishop or minister, within some part of his ma
jesty's dominions, or the dominions of some foreign prince of
the Reformed Religion ; upon which testimony the governor
shall induce the said minister into the parish that shall make
presentation of him, as duly elected by the major part of the
inhabitants, householders."
It will be seen that under this law it was not necessary
that a minister should be of the Church of England to obtain
a license for a parish.1
1 In 1840 a question arose under the Act of 31st of George 3d,
Cap. 31, called the Constitutional Act of the Canadas, in which the
language is almost identically the same with that of the law of the
Duke of York. The judges of England were consulted by the House
18 INTRODUCTION.
By one of these laws all the inhabitants were to bear
their due proportion of charges for the support as well of
Church as of the state ; and if a person did not voluntarily do
so, he should be compelled by assessment and distress.
In 1672, certain orders were made at the General Court
of Assizes held in New- York, and among them was an order
that the laws of the government be duly observed as to paro
chial churches; and although divers persons may be of dif
ferent judgments, yet all shall contribute to the minister
established and allowed of.1
And in 1675, another Court of Assizes was held, and it
was ordered that towards the maintenance of the ministry,
besides the usual county rate, there shall be a double rate
levied upon all those towns that have not already a sufficient
maintenance for a minister.3
In 1693, the Assembly of New- York enacted a law for
settling a ministry, and raising a maintenance in the coun
ties of New-York, Richmond, Westchester and Queens. It
provided that in each of these counties there should be called,
inducted, and established a good sufficient Protestant min
ister, to officiate and have the cure of souls ; that there
should be annually assessed and levied a certain sum for the
maintenance of such ministers.3
In the session of 1695, the House of Assembly resolved
that the wardens and vestrymen had power to call a Dissent
ing Protestant minister under this act. By this statute ten
vestrymen and two churchwardens were to be elected, who
were, with the justices, to assess the maintenance of the min
ister. In 1705 a further act was passed, entitled "An Act
of Lords, and answered, that the words, " A Protestant Clergy," in the
statute included other ministers than those of the Church of England.
PHILLIMORE'S Ed. of Burns, vol. 1, p. 415. TTTT.
1 Collections Hist. Soc. N. Y., vol. 1, p. 421.
5 Ibid. 428.
3 Laws of Colony of New-York, vol. 1, p. 18.
INTRODUCTION. 19
for the better establishment of the maintenance of a minister
in the city of New- York," &c.
These several statutes were repealed by the acts of 17th and
20th of April, 1784, in which it was declared that though such
acts were at variance with the constitution of the state, as
tending to support and establish a particular denomination of
Christians, yet it was necessary to repeal them to prevent
uneasiness arising.
Notwithstanding the resolution of the Assembly, and per
haps the true construction of the statute, it is almost certain
that the intention of the Legislature was to give a preference
to the Episcopal ministers ; and such was the construction
in practice. This appears from various passages in Smith's
History of New- York,1 and fully from the recitals and other
clauses in the acts of the 17th and 20th of April, 1784, above
referred to.
So in South Carolina, the charter to the Earl of Clarendon
and others gave them the right of patronage, and the ad vow-
son of all churches, chapels and oratories, and to cause them
to be dedicated according to the ecclesiastical law of Eng
land. It conferred also the power to dispense with conformity
to the liturgy and ceremonies of the Church, and subscrip
tion to the Articles.^
Although by the ninety-sixth of the fundamental articles
drawn up by Mr. Locke, it was declared "that the Religion
of the Church of England, being the only true and orthodox,
and the national religion of all the king's dominions, was also
that of Carolina " — yet the public maintenance was only to
be by Act of Parliament ; and, by the ninety-seventh ar
ticle, indulgence to form congregations, churches, and profes
sions, was accorded to all.
In the year 1696-7, the General Assembly passed an Act
1 History New- York, p. 110. Ibid. 218.
2 DALCHO'S History of the Church in S. Carolina^ 1-3.
20 INTRODUCTION.
granting liberty of conscience to all Protestants " to enjoy full
and undisturbed liberty to exercise their worship according
to the professed rules of their religion."
In 1698, an act was passed for providing a public main
tenance of $150 per annum for a minister in Charleston, pay
able out of the public treasury. This act recited the pro
vision of the Charter of Charles II., that no religious ministry,
except that established by law in this kingdom of England,
should have any public maintenance. And, in November,
1706, an act was adopted supporting the establishment, which
continued to be the law of the Church in that colony, with
some additions and variations, to the time of the Revolution,
and portions of which it is understood regulate the Church
to this day.2
It is not necessary to notice any act connected with Vir
ginia prior to the new charter granted in 1619. In that it
was provided, that the clergy should have, in each borough,
a glebe of one hundred acres, and should receive a standing
revenue of two hundred pounds. In 1619, the Colonial As
sembly passed an act embodying these provisions; and, in
1621-2, further provisions were made upon the subject. Dr.
Hawks remarks,3 that the Church could not claim for itself
the privileges of an establishment prior to the legislation of
1619 ; that, from such period, we are to date the establish
ment of the Episcopal Church in Virginia.
In 1624, the Assembly, among other enactments respect
ing the Church, adopted the following, " That there should be
an uniformity in the Church, as near as might be to the
canons of the Church of England, and that all persons should
yield a ready obedience to them, upon pain of censure."4
1 DALCHO'S History, 31.
2 Ibid. app. 1.
3 Contributions to Ecc. His. vol. i., p. 35.
4 Ibid. 44.
INTRODUCTION. 21
In 1642, an act was passed, declaring " that no minister
should be admitted to officiate, in this country, but such as
shall produce to the governor a testimonial that he has re
ceived his ordination from some Bishop in England, and shall
then subscribe to be conformable to the orders and constitu
tions of the Church of England, and the laws there estab
lished.1
So, in 1662, the royal instructions were carried out by a
legislative act. Provision was made for payment of a salary,
and no one could serve as a vestryman without taking the
oaths of allegiance and supremacy, and subscribing a decla-
tion of conformity to the doctrine and discipline of the Church
of England. There was also a penalty imposed upon those
who should not attend divine worship.
In 1745 it was determined by the Attorney General, on a
reference to him, that the English Act of Toleration extended
to Virginia, and under this Presbyterianism arose and flou
rished in the state.2
"With the qualifications resulting from this decision, the
law remained the same until the sweeping repealing act of
1776.3
In Maryland, the first step towards the recognition of the
Church as an Establishment, was by an Act of the Assembly
of 1692. A certain tax was laid and ordered to be applied in
support of a minister. In 1696 a new law was passed, an
nulling that of 1692, as well as several subsequent laws ; and
it was provided, "that the Church of England within this
province, shall enjoy all the rights, privileges and freedoms, as
it is now or shall be hereafter established in the kingdom of
England ; and that his Majesty's subjects of this province
shall enjoy all their rights and liberties, according to the laws
1 HAWKS' Contr., vol. i. p. 53.
8 Ibid. p. 109. See the note ante p. 16.
3 Ibid. 143.
22 INTRODUCTION.
and statutes of the kingdom of England, in all matters and
causes where the laws of this province are silent."1
This act, by a manoeuvre of the adversaries of the Church,
did not receive the royal assent ; and in 1700 another was
passed. This also was vehemently opposed. The able and
devoted Dr. Bray went to England to obtain the sanction of
the king, and a statute was drawn up in that kingdom. It
was sent to Maryland, and in 1702 became a law.3 By this
law, every congregation and place of worship, according to the
usage of the Church of England, was to be deemed a part of
the Established Church. Every minister presented, inducted
or appointed by the Governor, was to receive forty pounds of
tobacco per poll. The sheriffs were to collect the tax. The
English acts of toleration were extended to Quakers and Pro
testant Dissenters, under certain regulations.3
It is not necessary to detail the successive assaults upon
the Church and the rights and property of the clergy, which,
through a long series of years, were made in the Assembly of
Maryland. Bitter animosity and perseverance advanced from
innovation to outrage, until the Revolution brought with it,
as a necessary and justifiable consequence, the overthrow of
the Church as an Establishment ; and the declaration of the
rights and liberties of the State of Maryland, in November
1776, terminated all that had survived of its distinctive pri
vileged character.4
1 HAWKS' Contr., vol. ii. p. 71. 3 Ibid, 89. 96. 113.
8 The remarks of Dr. Hawks, (p. 115,) that this law sprang from the
Board of Trade, and that its adoption by the Assembly of Maryland
was a mere formal mockery, seem scarcely warranted. Whatever were
its merits or demerits, it was a full expression of the real sentiments
of the Assembly. The law of 1700 was quite as rigid in regard to
Papists, and without any toleration of Dissenters ; yet it passed the
Assembly unanimously.
4 The Legislature of Maryland, with a sense of justice most com
mendable in those days, secured to the Church all the glebes and
property then owned by her, and directed that the repairs of the sacred
INTRODUCTION. 23
From this detail of the legislation in these colonies, it is
plain that the whole system of a partial provision for the
Episcopal Church is attributable to the Assemblies themselves.
The government of England did not prescribe it : — Parliament
was inactive and silent. There were, indeed, injunctions to
this eifect in several of the instructions of the king ; but as to
these we must notice, that a National Church could only be
established by the authority of Parliament. No other power
could bind the whole realm to uniformity of worship, or render
an oath of subscription to articles, a condition of filling a civil
or other office.1
Hence, when we find that in royal instructions and pro
clamations, the governors of colonies are directed not to prefer
any one to an ecclesiastical benefice without a certificate from
the Bishop of London of his conformity to the doctrine and
discipline of the Church of England, we meet the very question
which so long agitated the colonies as to the force of the
royal ordinances, and must admit their insufficiency.'2
It is not to be denied that the governors often availed
themselves of these proclamations to justify their acts. Some
edifices then progressing should go on. It forbade all further assess
ments for the support of ministers.
1 The authority of the king over the Church, prior to the series of
statutes in the time of Henry the Eighth, though largely insisted
upon by Lord Coke, (5 Institute.) has been, and particularly of late,
much questioned and limited. Bishop Stillingfleet long ago denied,
that the king could appoint a commission to proceed by way of an
extraordinary jurisdiction against persons by ecclesiastical censures.
(Ecc. Cases, part ii. p. 67.)
Mr. Churton, in his interesting history of the Saxon Church, affords
valuable information upon this head. I think it may be gathered that
the king was but one, though the head, of that great Assembly, in
which priests, nobles and monarch framed the Jaws for both Church
and State. See also DAWSON'S Origo Legum, Book vi., cap. 3d, 4th.
2 Instructions to Lord Cornbury, Governor of New-York, 1703.
Apud Hawkins' Hist. Notices, p. 423. Ordinance of the King, 1606.
Apud Anderson's Hist, of the Colonial Church, p. 206. Instructions to
Sir W. Berkely, Governor of Virginia. Apud Hawks' Contr., vol i. p. 65.
24 INTRODUCTION.
in the spirit of unjust intolerance, some in the conviction of
their legality and the firm persuasion that to be within the
Church of England was to be in the only path of safety, acted
upon these instructions, and not upon the law. But the spirit
of the age was not the spirit of toleration, nor can Churchmen
be justly charged with an excess of severity. The act of
Virginia, in 1642, which silenced the delegates from the mi
nisters of Boston under pain of banishment, will not contrast
unfavorably with the statute of Massachusetts which doomed
the exiled Quaker to death if he returned.1
Another and important characteristic of the Church of the
colonies was this. It did not owe its existence or support to
the government of England. Neglected and unnoticed, if it
received no strength from the hands of ministers, it escaped
the baneful influence of dependence upon them. The govern
ment cared not to interfere with the nominations of clergymen
to the places of labor and destitution which fell to the lot of
the missionaries. It was only when the fervent eloquence of
Bishop Berkely had won from a reluctant Parliament the mu
nificent gift of £20,000 to found a college for America, that
Sir Robert Walpole interposed, and plundered the fund to
swell the nuptial pomp of a Princess.3
But it was to the Society for the Propagation of the Gospel
in Foreign Parts, that this land was chiefly indebted for the
spread of the sound doctrines and faith of the Church. That
society was incorporated in 1701, and owed its existence as
much to the exertions of Dr. Bray, commissary of Maryland,
as to those of any other person. It was, in the language of
the charter, established "for the receiving and managing such
funds as might be contributed for the religious instruction of
his Majesty's subjects beyond the seas ; for the maintenance
1 Hawks, vol. i. p. 53.
1 2 HAWKINS' Church in the Colonies. CHANDLER'S Life of Johnson, 53.
INTRODUCTION. 25
of clergymen in the plantations, colonies and factories of Great
Britain ; and for the general propagation of the Gospel."
It would be inappropriate here to trace the transactions of
this beneficent body. The story of its abundant labors and
countless blessings, is a proper theme for the eloquent pen of
the historian of the Church. Throughout his own works —
throughout the late publications in England upon colonial
annals — are poured forth in a copious stream, the memorials
of its holy efforts, and their holy fruits ; and when from the
thousand altars of the Episcopal Church, the utterance of
praise and prayer arises in the stately-flowing language of the
liturgy of Edward, let us remember that chiefly to that society
we owe the inappreciable gift.
Nor does it devolve upon me to do more than to glance at
the early, renewed, incessant efforts of American Churchmen
to obtain a bishop for the colonies. From the year 1702,
when the plan of the zealous Dr. Bray was urged, to the year
1767, when Johnson and Chandler made the last appeal, the
missionaries of the Church stood upon the shore, and beckoned
the descendants of the Apostles to come across. They beckoned
ineffectually, and the cause of Episcopacy trembled for many
years in the struggle with dissent.1
In connection with this topic, I shall briefly advert to the
superintendence of the Bishop of London over the colonial
Church, and its union with the Diocese of London. Some
obscurity attends the origin of this authority ; but at a later
period, it was derived from the king's Commission.2
•HAWKS, vol. 2, p. 119. CHANDLER'S Life of Johnson , p. 115. Some
earlier attempt may have escaped my notice.
2 Dr. Hawks states (vol. 2, p. 112) that Bishop Gibson was the only
bishop who had taken a commission from the king. Bishop Wilber
force observes (American Church, p. 137) that when Gibson came to
the See of London he was told that by an order of Council in the
reign of Charles II., the colonies were made a part of the See of
London; that upon search he discovered none such to exist, and that
he declined to act until he obtained a commission from the crown.
26 INTRODUCTION.
It would be an endless and unnecessary task to detail the
recognitions by the Church and public bodies, of the authority
of that Bishop. It is sufficient to adduce a few examples in
the note, and to say that it was scarcely ever questioned.1
There are some other facts illustrative of the situation of
the colonial Church in connection with that of England, which
I deem it useful to notice.
In May 1704, the Assembly of South Carolina passed an
act requiring conformity to the worship of the Church of
England, in all members of the Commons House of Assembly.
The Reverend Edward Marston strongly censured the sta
tute, and was proceeded against for reflecting upon the purity
and character of the house. It ended by his being deprived,
by resolution, of his salary of d£150, granted under the act of
1698 ; leaving his office and ecclesiastical function to his
His first act appears to have been an address dated November, 1723.
In the instructions of the venerable Society to the missionaries, they
were directed to wait upon the Lord Bishop of London, their Diocesan ;
(1 HAWKINS' Hist. Notices, p. 424 ;) and in the instructions to the
governor, of 1703, this authority over them is recognized. (Ibid. 423.)
There are two letters from Bishop Sherlock in Chandler's Life of
Johnson, dated, one in 1750, and the other in 1752, adverting to the
necessity of taking out a royal patent, and from the last of which I
judge that he ultimately did so. (Page 171.)
1 As early as 1687, a memorial was presented from Maryland to
the Bishop of London, a to send some one invested with so much of
the authority of the Diocesan as would capacitate to redress what was
amiss, and supply what was wanting in the Church." In this the
governor and Assembly concurred. (Hawks, vol. 2, p. 81.) In Jan
uary, 1699, the governor and Council of South Carolina addressed a
letter to the Bishop, speaking of the fatherlike care he had taken to fill
all the churches in his majesty's plantations in America with pious,
learned and orthodox ministers, and especially by securing so emi
nently good a man as the late minister, Mr. Marshall." (DALCHO'S
Hist.) The bishop appointed commissaries for various colonies,
the Rev. Mr. Johnson, for South Carolina, in 1707 ; Henderson and
Wilkinson, for Maryland, in 1716; Dr. Bray, for North Carolina, in
1703; Dr. Blair, for Virginia, in 1689; and the Rev. Mr. Vesey, for
New-York in 1713.
INTRODUCTION. 27
Ecclesiastical Governors and Ordinary, and not meddling
therewith. The deprivation was to be until amendment and
submission. The Governor and Council concurred in this
censure.1
Another law of this colony, passed in November 1704,
contained provisions of a very arbitrary and exclusive nature,
and became a source of offence both to Churchmen and their
adversaries. The Dissenters treated it as a violation of the
charter and an infringement on their privileges : the Church
men complained of it as constituting a lay tribunal for the
judging of ecclesiastical cases. A commission for that pur
pose was established of twenty laymen. This was denounced
as an invasion of the authority of the Bishop of London, by
whom, or by whose officials, such courts could alone be held.
In 1706, a memorial was sent to the House of Lords,
complaining of this act of the Assembly. It stated, amongst
other things, that the ecclesiastical government of the pro
vince was under the Bishop of London, but that the governor
and his adherents had at last done what the latter have often
threatened to do — wholly abolished it.Q
The Lords voted an address to the queen, in which they
declare, that the said act, so far as the same relates to the
establishing a commission for displacing the rectors or minis
ters of the Churches, was not warranted by the charter, was
repugnant to the law of the realm, and destructive of the con
stitution of the Church of England.
They denounced equally the provision of the other act, as
to the qualifications of members of Assembly. That act I
have before noticed, as passed in May, 1704. In June, 1706,
the queen declared the laws to be null and void. The Society
determined to send no more missionaries to South Carolina,
until the Legislature repealed the acts ; and, accordingly, in
November, 1706, the General Assembly abolished them.
1 DALCHOS' Hist., 56-58. 3 Ibid. p. 65.
28 INTRODUCTION.
A striking case is to be found in the history of Maryland.
In 1704, one of the parishes made an application to the go
vernor, by way of petition, and drew up articles against their
ministers. The governor consulted with some of the clergy.
The course recommended was, that if a remonstrance with
the ministers proved ineffectual, then the governor should call
on him to answer the charges preferred, and that the testi
mony should be transmitted to the Bishop of London, for his
determination of the case. The vestry renewed their solicita
tions to the governor to decide the case. He thought of sum
moning the party to make his defence before the council, but
was advised by some of the clergy, that the matter was of
purely ecclesiastical jurisdiction. He then sent three clergy
men into the parish to examine into the matter, partly to quiet
the minds of the complainants, and partly to ascertain facts
which might be laid before the bishop.1
In this precedent, we have the theory of ecclesiastical
authority and the rule of the canon law of England observed
as far as it was practicable. By that law, the churchwardens
have the right, and are the proper persons, to lay a complaint
before the bishop of the diocese, by whom it is to be investi
gated and determined.1 The application to, or through the
governor, was a matter anomalous, but growing out of his
legal position. The governor disclaimed the power of judg
ing a matter merely ecclesiastical, and put the parties in the
way of having the facts laid before the bishop.
Again. — In the course of the fierce and persevering attack
made by Bordesley upon the Church, he introduced a bill into
the Assembly to establish a, Court for the Trial of Clergymen,
and thus to bring them under a lay jurisdiction. The gover
nor refused his assent ; first, because the clergy were properly
under the jurisdiction of the Bishop of London ; and, next, be-
1 HAWKS' Con/r., &c., vol. 1, p. 140.
* PHILLIMORE'S Ed. of Burns, vol. 1; p. 399.
INTRODUCTION. ; 29
cause there were really no such evils as to render the law
necessary.1 So we find that the Commissary of the Bishop
officially informed one of the clergy of complaints made against
him, and preliminary measures were taken for the investiga
tion and correction of his conduct.2
Upon this subject, however, the attempt to procure an
act from the Assembly of Maryland, recognizing the authority
of the Bishop of London, deserves consideration. The details
will be found in Dr. Hawks' volume, p. 159, &c. It appears
that it was sought for by the governor ; that it was not re
quired, or deemed necessary, by the Bishop ; that it was
opposed by Mr. Henderson, the Commissary of the Eastern
shore ; and that the leading motives for the effort were the
removal of difficulties which attended the exercise of the
Commissary's power. By one provision, for example, the
sheriff was appointed the officer to serve citations, &c.
Upon the whole, it is manifest, that this attempt was to
strengthen and facilitate the exercise of the Bishop's jurisdic
tion, not to establish it.
During the colonial period, it was the custom of the clergy
of Connecticut to meet in convention, and transact such busi
ness as lay in their power. After the consecration of Bishop
Seabury, these assemblies were termed convocations. The
connection with the English Church is clearly recognized, or
implied, in all the early records.3
1 HAWKS' Cont., vol. 2, p. 179.
Hbid. p. 159.
3 Thus, at a meeting of convention at Wallingford, May 28, 1776,
the following act took place : — '• We, the clergy of the Church of Eng
land in Connecticut, in a voluntary convention, beg leave, with all
humility, to recommend Mr. Abraham Beach to your Lordship, as a
proper candidate for holy orders." This was addressed to the Bishop
of London. It was also voted that a letter be wrote to the Bishop of
London to acquaint him cor.cerning the conduct of the churches in
these difficult times; and also concerning the taking away children
from their godfathers." I have examined various minutes of these
3
30 INTRODUCTION.
I have thus gathered together a collection of facts and
historical muniments, to show the identity of the Church of
the colonies with that of England — to show how thoroughly
she was pervaded with the spirit of the law, as well as of the
faith and doctrine of that Church. In following this inquiry,
it can scarcely have escaped notice, how much that law was
modified and influenced by our colonial situation, usages, and
jurisprudence. The truth is, that a common law had sprung
up in the colonies, the offspring of their necessities and posi
tion, in the same manner as the common law of England had
arisen in the Saxon ages. The latter, with wonderful flexi
bility, had adapted itself to the mutations and the progress of
successive centuries. That superadded American common
law was developed in usages and statutes ; and its influence
was felt in the system of the Church, as well as in the civil
relations of the people.
And thus, as we better understand her character and posi
tion, we shall better appreciate the facility of her transition
from the Church of England in the colonies, to the Protes
tant Episcopal Church of the United States. No violent dis
ruption of the sacred bond took place. The daughter glided
from the mother's side, because, in the allotment of Provi
dence, she had been led to maturity and independence ; but
conventions through 1774, 1776, 1780, and other years. In 1776, in
June, it was resolved, that the clergy supply the vacant congregations
of the Church of England in this colony as often as will be consistent
with their other duties. And the members present were distributed
accordingly.
At the same meeting, letters recommendatory were given to Mr.
J. Nichols as a candidate for orders, addressed to the Bishop of
London.
In May, 1781, a conventional letter was directed to be written to a
clergyman, expressive of their concern for his deviation from the doc
trines of the Church, and appointing a committee to consider what
was advisable to be done in his case.
The heading of the minutes of the convention, is, " At a Meeting
of the Clergy of the Church of England in Connecticut."
INTRODUCTION. 31
the spiritual union, the union of faith, of worship, and of dis
cipline, was undestroyed ; and God grant that it may prove
indestructible.
The separate action of the Churches in the states, after the
revolution, and prior to or about the period of the organization
of the Greneral Convention, is the next subject of inquiry.
On the day after the declaration of Independence, the Con
vention of Virginia altered the Book of Common Prayer to
accommodate it to the change of affairs.1 This document is
found in the State Library, in Albany. It contains various
alterations of the service, almost exclusively relating to the
prayers for rulers, and closes as follows:
" Let every other sentence of the Litany be retained, with
out any other alteration, except the above sentences recited."
By the act of the Assembly of Virginia, of 1784, the ves
trymen were required to subscribe a Declaration of Confor
mity to the Doctrine, Discipline and Worship of the Protes
tant Episcopal Church.2
Among the regulations of 1785, it was provided, that the
Liturgy of the Church of England should be used with such
alterations only as had been rendered necessary by the Ame
rican Revolution.3
In 1790, during the bitter assaults upon the rights of the
Church to the glebes, it was resolved by the Convention,
" That the Protestant Episcopal Church is the exclusive owner
of the glebes, churches, and other property held by the Church
of England in Virginia, at the commencement of the revolu
tion ;" 4 and, in 1799, an opinion was given by Bushrod Wash
ington, Edmund Randolph and John Wickham, asserting the
same doctrine as was contained in the resolution of the Con
vention.
1 HAWKS' Confr. voT. 1, p. 238. a Ibid. 163. 3 Ibid. 182.
4 Ibid 209. An Essay was read by Dr. Madison upon this subject.
32 INTRODUCTION.
The action of Maryland is of the highest importance. In
1775, the authorities prescribed a form of prayer for the new,
instead of the old government, and required an oath of the
clergy to support it.
In 1783, the celebrated Declaration of fundamental rights
was issued by the first convention. It was declared that
"the Church of Maryland possessed the right to preserve and
complete herself as an entire Church, agreeably to her ancient
usages and professions : that she had the essential enjoyment
of those spiritual powers which are essential to the being of
every Church, independent of any foreign or other jurisdiction,
so far as may be consistent with the civil rights of society."
It was also declared, "that the churches, chapels, glebes
and other property formerly belonging to the Church of Eng
land, belonged to that Church and were secured to it for ever " ;
and it closed with the following admirable passage : "As it is
" the right, so it will be the duty of the said Church, (when
"duly organized, constituted and represented in a synod or
" convention of the different orders of her ministers and
" people,) to revise her liturgy, forms of prayer, and public
" worship, in order to adapt the same to the late revolution,
" and other local circumstances of America ; which, it is
" humbly conceived, may be done without any other departure
" from the venerable order and beautiful forms of worship of
"the Church from which we sprung, than may be found
" expedient in the change of our situation from a daughter
" to a sister Church."
In the Vestry act passed by the State of Maryland in 1798,
and adopted by the Church as part of its organization, there
is a clause expressly recognizing the Church of England as
having been the same as the Protestant Episcopal Church of
Maryland.1
1 HAWKS' Contr., vol. ii., p. 330. Compilation of the Constitution,
&c. Baltimore, 1849. p. 275, $ 16.
INTRODUCTION. 33
By the Constitution of South Carolina, 31st May, 1786, it
was declared that the doctrines of the Gospel be maintained
as now professed in the Church of England, and uniformity
of worship be continued as near as may be to the liturgy of
the said Church. (DALCHO'S Hist., &c., p. 474.)
The action and judgment of Pennsylvania is shown by the
fundamental articles adopted in May 1784. One of them
was, that the said Church shall maintain the doctrines of the
Gospel as now held by the Church of England, and shall ad
here to the liturgy of the said Church as far as shall be con
sistent with the American Revolution and the Constitution of
the respective States.1
In September 1784, Massachusetts declared certain articles,
the third of which was almost in the identical language of
that of Pennsylvania above quoted.2
The State of New Jersey, in May 1786, passed a set of
rules and regulations. By the 9th, a declaration was re
quired from every clergyman before he could officiate in the
state, "that he engaged to conform to the discipline of the
Church, and also to the doctrines and worship agreeable to
the Book of Common Prayer of the Church of England,
except the political alterations in the mode of worship made
therein by the Convention held in Philadelphia from the 27th
September to the 7th October, 1785."
In New-York, in 1790, it was resolved as follows : —
"Whereas many respectable members of our Church are
alarmed at the Articles of our Religion not being inserted in
our new Book of Common Prayer, Resolved, that the Ar
ticles of the Church of England as they now stand, except
such part thereof as affect the political government of this
country, be held in full force and virtue until a further pro
vision is made by the General Convention." 3
' ! WHITE'S Memoirs, 73. s Ibid, 69.
^3 Journals 1790, p. 39.
34 INTRODUCTION.
A proposition was submitted in 1791, instructing the De
puties to vote for retaining the Articles of Religion as they
now stand in the old Book of Common Prayer, without any
alteration except such as are of a political nature. The mo
tion was deferred. In 1801, instructions were given to that
effect.1
The Convention of New Jersey, in May 1786, after debate,
agreed to a memorial to the General Convention, in which the
following admirable passages are to be found : " Your me
morialists do not question the right of every national or inde
pendent Church to make such alterations from time to time
in the mode of its public worship as may be found convenient ;
but they doubt the right of any order or orders of men in an
Episcopal Church without a Bishop, to make any alterations
not warranted by immediate necessity, especially such as not
only go to the mode of its worship, but also to its doctrines.
Your memorialists having an anxious desire of cementing,
perpetuating and extending the union so happily begun in the
Church, with all deference, humbly request the General Con
vention that they will revise the proceedings of the late Con
vention and their committee, and remove every cause that
may have excited any jealousy or fear that the Episcopal
Church in the United States of America has any intention
or desire essentially to depart, either in doctrine or discipline,
from the Church of England ; but on the contrary, to convince
the world that it is their wish and intention to maintain the
doctrines of the Gospel as now held by the Church of England,
and to adhere to the liturgy of the said Church, as far as shall
be consistent with the American Revolution and the Consti
tutions of the respective States."2
Among the documents of great value connected with the
history of the Church in Connecticut, which I have examined,
1 Journal, 1801.
• Proceedings of the Convention N. Jersey: Trenton, 1787.
INTRODUCTION. 35
is a letter from Doctor, afterwards Bishop Jarvis, dated May
1786, which expresses the views of the clergy of Connecticut.
Among other things, he remarks: — " In the planting and
growth of the Church in America, I have always understood
that the Church of England was propagated and enlarged.
Now, as our Church was in her original a part, and is, in her
formation, the image of that — if we still adhere to the wor
ship and doctrine, is it not proper (the question may be, whe
ther it be not needful) to declare so authoritatively ? I would,
then, submit the following particulars : — 1. That it be recom
mended to the Bishop to call a convocation, at which a reso
lution should be moved that we adopt the liturgy of the
Church of England entire, except the prayers for the state,
and the offices appointed for state days ; or with some few
abbreviations, such as will do no injury to the sense, order or
connection of the whole. 2. That some particular prayers be
added to those for special occasions, viz : for sick children,
for persons under affliction for the death of friends, and for
persons bound to sea, &c. 3. That such of the rubrics as we
have found it necessary to deviate from, be altered where
some alteration only is wanted ; or others made, that are ne
cessary to render our service and practice strictly rubrical
and uniform. 4. That there be a revision of the canons, and
such as are applicable, or may be made so, be selected ; and
in matters for which it is needful to provide entire new ones,
suitable to the state and circumstances of our Church, that
such be provided and confirmed by act of convocation."
In the year 1814, the following important act took place
in the General Convention. The House of Bishops, and that
of Clerical and Lay Deputies, united in the following de
claration :
" It having been credibly stated to the House of Bishops,
that on questions in reference to property devised before the
revolution to congregations belonging to the Church of Eng-
36 J INTRODUCTION.
land and to uses connected with that name, some doubts
have been entertained in regard to the identity of the body to
which the two names have been applied ; the House think it
expedient to make these declarations, and to request the con
currence of the House of Clerical and Lay Deputies therein,
viz. : That the Protestant Episcopal Church in the United
States of America, is the same body heretofore known in
these states by the name of the Church of England ; the
change of name, although not of religious principle in doc
trine, or in worship, or in discipline, being induced by a cha
racteristic of the Church of England, supposing the indepen
dence of the Christian Churches under the different sovereign
ties, to which respectively their allegiance in civil concerns
belongs. But it would be contrary to fact for any one to
infer that the discipline exercised in this Church, or that any
proceedings therein, are at all dependent on the will of the
civil or ecclesiastical authority of any foreign country."
I add, in the note, the valuable and strong authority of
Bishop White to the point now urged, as well as some other
opinions. I would call attention to the perspicuous state
ment of the proposition by the late Thomas Addis Emmett.1^
1 " In all the deliberations of the convention, the object was the per
petuation of the Episcopal Church, on the ground of the general prin
ciples which she had inherited from the Church of England, and of
not departing from them except so far as local circumstances required,
or some very important cause rendered proper. To those acquainted
with the Church of England, it must be evident that this object was
accomplished on the ratification of the Articles."
Again, <: The political prayers were superseded, (by the revolu
tion,) and the using ihem was punishable by events brought about in
the course of Divine providence. To pray for our civil rulers was a
duty bound on us by a higher authority than that of the Church.1 In
all other respects, I hold the former Ecclesiastical system to be bind
ing. The Conventions of our Church have always acted on the same
principle, except that of October, 1789. whose adoption of a different
principle has rendered our Liturgy much more imperfect (according to
1 See the admirable Thanksgiving Sermon of Bishop Stilliogfleet, 1694.
INTRODUCTION. 37
It appears to me difficult to overrate the force of the reso
lution of the Houses in 1814, and the similar proceedings in
the states which have been mentioned. By the decided
voice of the Church, separately expressed in Virginia and
my opinion) than it would otherwise have been." (Appendix to WIL
SON'S Life of Bishop White, page 347.)
After speaking of Dr. Blackwall, he says, " He is of opinion, with
the House of Clerical and Lay Deputies, in 1789, that our Church pos
sesses no institutions until made for her specially. If the matter had
been so understood at the close of the revolutionary war, and there
had been among us such spirits as I can now designate, it would have
torn us to pieces." (Ibid. 348.)
In the Memoirs of the Church (p. 175) the Bishop goes through
the discussion upon the Book of Common Prayer in the year 1789, and
states the different principles upon which the House of Clerical and
Lay Deputies and the Bishops proceeded. In the practical result, the
views of the Bishops were carried out. The English book was made
the basis. It was to remain, except as altered.
See also his work on the" Comparative View of the Calvinistic and
Arminian Controversy, vol. 2, page 191. So in the Memoirs of the
Church he re-states the position, and urges many reasons in its sup
port, that what is now called " the Episcopal Church in the United
States of America, is precisely in Succession the Body formerly known
as the Church of England in America, the change of name having
been a dictate of the change of circumstances in the civil constitution
of the country."
The opinion of the House of Deputies in 1789 was in opposition to
that of the Bishops, and Dr. Wilson (Life of Bishop White, p. 141) re
marks that this differed from the course taken both by previous and
subsequent conventions, and being confined to one House, and not at
any time afterwards pursued, cannot be regarded as a determination
against the principle adopted by the Bishops.
Dr. Hawks (Constitution and Canons, p. 265) observes, " The opin
ions which were entertained in the mother country, and the decisions
which had been made on matters of ecclesiastical law, or usage, up
to the severance of these colonies by the revolution, were, as far as
applicable, held to be the guide of the Church of England here, and
although the independence of the United States dissolved the con
nection, it evidently did not destroy the prevailing opinions among
Churchmen as to matters and usages touching the Church. To the
common and canon law -of England we must therefore look, if we
would fully understand the origin of much of the law of our own
Church."
38 INTRODUCTION.
Maryland, and then uttered by the representative body of the
whole Union, the identity of the Church of England with our
own was proclaimed. In what then did this -identity consist ?
How was it that the Protestant Episcopal Church in Virginia
and Maryland continued to be the owners of that property,
which was once vested in the Church of England in the
colonies. "Was it because the Liturgy was retained with
several modifications — because the Articles were republished
with some variations — because the faith was adhered to ; or
was it because the whole compact body of the English
Church, in all its integrity — as far, and in every particular as
far, as it was not necessarily, or by express enactment,
changed, was continued and perpetuated ?
That Church comprehended, as integral portions of its
very existence, not merely Articles and Liturgy, but laws
and canons for discipline and rule. On what possible ground
can this identity be asserted, if the latter important funda
mental element of identity, is discarded ?
Again, Another argument may be used which strikes me
as of great weight. It is stated by the highest authority,
I add a passage from the argument of Mr. Emmet, in the case of
the Rev. Cave Jones, (Report of the Case, &c., p. 493. New- York,
1813,) '-No rnan could be permitted to say, that nothing was permitted
or restrained as to any particular matter in a newly erected state,
since its own immediate legislature had passed no law or ordinance
respecting it. The answer would be — the law which regulates it is
prior to the existence of our state; it comes to us by inheritance from
our fathers, and we brought it with us into this association. So it is
with our ecclesiastical government. In organizing and becoming
members of the Protestant Episcopal Church in America, no one con
sidered himself as becoming a member of a new religion, or as adopt
ing a different form or rules of ecclesiastical government, except so
far as depended upon the connection in England between Church and
State, and the regulations in that country produced by the king's
being the head of the Church. These were all necessarily rejected as
being inapplicable to our situation; but in every other respect, the
rules and laws of our Mother Church, where they can be applied, are
the common law of our own religious association."
INTRODUCTION, 39
that " in every Church, whatever cannot be clearly deter
mined to belong to doctrine, must be referred to discipline;
and that this Church was far from intending to depart from
the Church of England in any essential point of doctrine,
discipline, or worship, or farther than local circumstances
require/'1
Let us ascertain what is the sense of the term " disci
pline," when used in ecclesiastical writings.
It has, I apprehend, two meanings: First, The adminis
tration of punishment for offences. Next, The regulation and
government of the Church. "The following passage from Bishop
Gibson affords an illustration of the first meaning. " The very
office of consecration, so often confirmed by parliament, war
rants every Bishop, in the clearest and fullest terms, to claim
authority by the Word of God, for the correcting and punish
ing of such as be unquiet, disobedient and criminous, i. 6., for
the exercise of all manner of spiritual discipline." 2
The other meaning is of more importance to the present
argument. In the preface to the English Book of Common
Prayer (2d and 5th Ed. VL, " Of Ceremonies, why some be
abolished and others retained,") is the following clause : "Al
though the keeping or omitting of a ceremony, in itself con
sidered, is but a small thing, yet the wilful and contemptuous
transgression of a common order and discipline is no small
offence before God."
Again. " And, besides, Christ's Gospel is not a ceremonial
law; but it is a religion to serve God, not in the bondage of
the figure or shadow, but in the freedom of the spirit, being
content only with those ceremonies which do serve to a decent
order and godly discipline."
The Book of Common Prayer received some alterations
after the accession of James, and in the proclamation of that
1 Preface to the Book of Common Prayer, 16th October, 1789.
2 GIBSON'S Codex, vol. 1, p. 18.
40 INTRODUCTION.
monarch is the following sentence : " And now, upon our
entry into this realm, being importuned with informations of
many ministers, complaining of errors and imperfections in
the Church here, as well in matter of Doctrine as of Dis
cipline, &C."1
And in the statute (13th-14th Charles II., § 1,) the pub
lication of all books bringing into contempt the Doctrine or
Discipline of the Church of England is prohibited.
But I do not find any where a passage more admirably il
lustrative of this subject, than in the preface to the Canons of
the ScottishChurch, adopted in 1839. " The doctrines of the
Church, as founded on the authority of Scripture, being free and
immovable, ought to be uniformly received and adhered to, in
all times and all places. The same is to be said of its govern
ment, in all those essential parts of its constitution which
were prescribed by its adorable Head. But in the discipline
which may be adopted for furthering the purposes of eccle
siastical government, regulating the solemnities of public wor
ship as to time, place and form, and restraining and rectify
ing the evils occasioned by human depravity, this character of
immutability is not to be looked for."2
Now, what did the discipline of the English Church com
prehend ? It embraced the establishment and prescription of
the Book of Common Prayer, to be used throughout the realm ;
the adoption by ministers of, and subscription to the articles of
faith ; the regulation of rites and ceremonies by canons and
rubrics ; and just as much, just as fully and absolutely, did
it comprise the whole body of ecclesiastical law by which the
1 Statutes at Large, vol. 2, p. 438.
2 Apud Burns' Ecc. Law, by PHILLIMORE, vol. 415. Hooker thus
uses the term, "As we are to believe forever the articles of evangelical
doctrine, so the precepts and discipline we are in like sort bound for
ever to observe."
The following occurs in an oration of Cicero, "Hsec igitur est tua
Disciplina, sic tu instituis adolescentes ? " — Pro C&lo.
INTRODUCTION. 41
Church, in all other particulars, was controlled and directed.
That this whole body of discipline was the rule of the colo
nial Church, with the unavoidable qualifications before ad
verted to, is a point which admits not of dispute.
When, then, we find our Church declaring, in one of its
most solemn acts, that all which is not of doctrine is of dis
cipline ; that she meant not to depart from the Church of
England in doctrine or discipline, further than local circum
stances required ; when we find that the body of English ec
clesiastical law was an undoubted part of discipline in that
Church and in the colonial Church ; when we find no discrim
ination made between what of discipline is binding and what
is annulled, the conclusion seems irresistible, that this law,
with necessary modifications, retained the same authority after
the revolution which it possessed before.
And what advantage can we reap by severing the tie with
the Church of England, in this particular, when the wisest of
our fathers cherished the connection in every other, as the
pillar and foundation of truth ? Far from their thoughts and
feelings was that pride of isolation and arrogance of judgment,
which would treat the Catholic Church as the newly-reared
fabric of its members will ; " as if it were a body in itself, in
debted to no one, related to no one, without fathers, without
brethren — as if it had fallen, like the Roman sacred shield,
immediately from Heaven."
And what advantages do we not lose, when we disclaim
this healthful and time-honored union ? Looking at the ques
tion merely as a lawyer and searcher for truth, we abandon,
(and for a dim untrodden path,) the road illumined by the
shining lights of English intellect in the Church and on the
bench. For our instruction and guidance we have the welt-
known names of Coke, Holt and Hardwicke, of Nichols,
Stowell and Lee, in the tribunals of justice ; of Ridley, Gib
son, Stillingfleet, and a cloud of others, among the English
42 INTRODUCTION.
canonists. Under their auspices, we shall find " happier
walls" than our own abilities can rear, or our own fancies can
devise. Here we may attain to certainty, the mother of
quietness and repose.
What then is that English ecclesiastical law whose in
fluence it is presumed is now felt in our Church ? That
question is best answered by quoting the doctrines and deci
sions of English jurists ; and I deem the subject of such
importance as to incur the charge of prolixity in stating them.
In the 25th year of Henry the VIIL, in the act for the
punishment of heresie, is a preamble setting forth the great
grievance which the generality of the words in Popish de
crees and acts produced, " and that the most learned and ex
pert man of the realm, diligently lying in wait upon himself,
cannot eschew and avoid the penalty and dangers of the same."1
To prove the ' inconsistency of many of these laws
with the laws of the land, Archbishop Cranmer had drawn
together many citations from the body of the Canon Law.
His compilation isHo be found in Burnet's History of the Re
formation.'2
And the Preface to the Reformatio Legum has the follow
ing striking passage : — " Leges Legibus, Decreta Decretis,
ac Us insuper Decretalia, aliis alia atque item alia accumulet,
1 Codex, vol. 2, p. 997.
2 Hist. Reformation, p. 257. Appendix. The articles enumerated
are chiefly those which relate to or assert the Pope's absolute authority.
One of them is very singular, u Every man must obey the canons arid
laws of the Pope, but the Pope and his conduct can be observed upon
by no man : nay though his sins destroy his own soul and be the means
to draw thousands into hell, yet can no man question his conduct."
\Vickliffe must have had some such extragavance in his mind
when he wrote as follows: — " Ecclesiasticusimo, et Romanum Pontifex
potest legitime a subditis et Laicis corripi et etinm accusari." (Condu-
siones J. WICKLIFFE apud Constitutiones Provinciales. Oxford Ed., J.
Lynwood and John De Athon. 1679. Addenda, p. 58. Anno 1378.)
INTRODUCTION. 43
ne cullum pene statuit cumulandi finem, donee tandem suis
Clementinis, Sextinis, Intra et Extravagantibus, constitution-
ibus provincialibus et Synodalibus, Paleis, Glosulis, Senten-
tiiSj Capituliis, Summariis, Rescriptis, Breviculis, Casibus
longis et brevibus, ac infinitis Rhapsodiis adeo orbem confor-
cinavit, ut Atlas mons, quo sustineri cesium dicitur huic (si
imponeretur,) oneri vixferendo sufficeret"1
Dawson, in his elaborate work on the Origin of Laws,
says, p. 35, " But afterwards, a new sort of common law
began to take place, which thrust and crowded out the other,
viz., that of the Decretals, Capitulars, Clementines and Ex-
travagants, and I know not what beside. Its first appearance
was about the year 836, as De La Marca saith, and Pope
Nicholas countenancing it, it quickly prevailed over all the
provinces of the west. In very deed, the true and real canon
law is lost among the many voluminous heaps of what falsely
bears its name ; and the canons of General Councils are
buried under the rubbish of decretals of Popes ; which made
an ingenious author, about the year 1046, in a comparison
between the Churches of the East and "West, to say, " In the
Greek Church are many Canonists, and in the Latin Church
are no Canonists, but many Decretal ists." (Book I., cap. 15.)
By the act 25 Henry VIII., c. 19, a Declaration of the
clergy was recited, that many of the constitutions, ordinances
and canons, provincial or sy nodical, were contrary to the
laws and statutes of the realm, repugnant to the king's pre
rogative, and onerous to the subject ; and the king was au
thorized to appoint thirty-two persons, half clergyman and
half laymen, out of the two Houses of Parliament, "to view,
search and examine the canons, constitutions, ordinances,
provincial and synodal, theretofore made, not contrariant or re
pugnant to the laws and customs of the realm and the pre
rogative royal."
1 Prefatio Ed. 1640.
44 INTRODUCTION.
It was also provided that " such canons, constitutions and
ordinances being already made not contrariant or repugnant
as aforesaid, should be used and executed as they were afore
the making- of the act, till such time as they be otherwise
ordered by such thirty-two persons."
So by the 21 chap, of Henry VIII. it is declared, that " the
people of the realm had bound themselves by long use and
custom to the observance of certain laws, not as the laws of
any foreign prince or prelate, but as the customs and ancient
laws of the realm, established as laws by the said sufferance,
consent and custom."
By the statutes of 27 Henry VIII. , c. 15, and 35 Henry
VIII. , c. 16, the authority of the commissioners was success
ively renewed, and again by the Act 3 and 4 Edward VI., cap.
11. A portion of this last act deserves attention. By the
first section it was enacted, that the king should have power
and authority to appoint the thirty-two persons to compile
the laws, and by the fourth section nothing in the act was to
be construed to give powers to those persons, or to the king^
to compile, publish, or set forth any ecclesiastical laws re
pugnant or contrary to the common law or statutes of the realm.
The work was compiled, but did not become a law, in
consequence of the death of Edward. Ineffectual attempts
were afterwards made to revive and establish it.
We shall see how the principle announced in the statute
prevails through all the leading authorities which I shall now
cite : —
Pope Gregory, in writing to St. Augustine, says : " We
are not to love customs, on account of the place from whence
they come, but let us love all places, where good customs are
observed. Choose, therefore, from every Church whatever is
pious, religious, and well ordered ; and, when you have made
a bundle of good rules, leave them for your best legacy to the
English.1
1 CHURTON'S Early English Church, p. 43.
INTRODUCTION. 45
Chief Justice Hale — " I conceive that, when Christianity
was first introduced into this land, it came not without some
form of external ecclesiastical discipline or coercion, though
at first it entered into the world without it ; but that external
discipline could not bind any man to submit to it, but either
by force of the supreme civil power, where the governors re
ceived it, or by the voluntary submission of the particular
persons that did receive it ; if the former, then it was the civil
power of the kingdom which gave that form of ecclesiastical
discipline its life ; if the latter, it was but a voluntary pact or
submission which could not give it power longer than the party
submitting pleased ; and then the king allowed, connived at,
and did not prohibit it ; and thus, by degrees, introduced a
custom whereby it became equal to other customs or usages.1
In Cowdry's case, (5 Coke's Rep. 33,) Lord Coke says :
" So albeit the kings of England derived their ecclesiastical
laws from others, yet so many as were proved, approved and
allowed herein, and with a general consent, are aptly and
rightly called the king's ecclesiastical laws of England." Jus
tice Whitlock, in Evans v, Owen, (Grod. Rep. 432,) observes:
" There is a common law ecclesiastical, as well as our common
law, jus commune ecclesiasticum, as well as jus commune
laicum"
The case of the commendams in Sir John Davies' Reports,
096, &o., is full of valuable learning, on this and other topics.
The actual question was, whether an appointment to a
Bishopric vacated per se all inferior benefices ; and two cases,
from the year books in the reigns of Henry IV. and Richard
III., were cited to prove the position. A statement is then
made as to the time and manner of introducing the body
of the canon law into England ; and it is inferred, especially
from a passage of Roger Bacon, that it first came in {under
Stephen, about 1150. The gradual efforts of the Popes to ex-
1 Cited by Lord Hardwicke, 2 Atkyns, 699.
46 INTRODUCTION.
tend its influence, as well over the laity as the clergy, are
then fully detailed. The report proceeds: "A long time be
fore the canon law was authorized and published, (which was
after the Norman Conquest, as. was before shown,) the ancient
kings of England, viz., Edgar, Alfred, &c., have, with the
advice of their clergy in the realm, made divers ordinances
for the government of the English Church; and, after the
Conquest, divers provincial synods have been held, and many
constitutions made, in both the realms of England and Ire
land ; all which are part of onr ecclesiastical law at this day."
And so, in Evans v. Ascaith (Willm. Jones' Rep. 160,) it was
declared that no foreign canons bind here except such as have
been received, but, being received, they become part of our
laws." And, in Shute v. Vaughan, p. 132, upon a
question of a cession of one benefice, by promotions to another,
it is laid down, that the ancient canon law received into this
kingdom, is the law of the kingdom in such cases.
I know of no authority in which the rule upon this subject
is stated with more precision and accuracy, than in the opinion
of Chief Justice Tindal, in the Queen v. Mills (10 Clarke &
Finally, 678). " I proceed in the last place to endeavor to
show, that the law by which the spiritual courts of this king
dom have from the earliest time been governed and regulated,
is not the general canon law of Europe, imported as a body
of law into this kingdom, and governing those courts proprio
vigore ; but instead thereof an ecclesiastical law, of which
the general canon law is no doubt the basis, but which has
been modified and altered from time to time by the ecclesias.
tical constitutions of our Archbishops and Bishops, and by the
legislature of the realm, and which has been known from
early times by the distinguishing title of the King's Ecclesias
tical law. That the canon law of Europe does not, nor never
did, as a body of laws, form part of the law of England, has
been long settled and established."
INTRODUCTION. 4,
So Lord Abinger (Ibid. 745.) "My noble and learned
friend (Lord Brougham) seems to consider that the ecclesias-
tical law of England is to be derived from the ecclesiastical
law of the continent. I beg to observe, that he has not at all
satisfied my mind upon that part of the argument. The
learned judges have, I think, satisfactorily derived it from the
constitutions of the synods and councils in England, before
the authority of the Pope was acknowledged in this country.
I take that part only of the foreign law to be the ecclesias
tical law of England, which has been adopted by Parliament
or the courts of this country."
And Lord Cottenham, in his opinion, (p. 876,) thus ex
pressed himself: "Jt is expedient, therefore, to ascertain as
far as possible, what rules were prescribed to the ecclesiasti
cal courts by the authorities within this realm ; and if it shall
appear that before the time at which the canon law is stated
to have been introduced into this country, that is, before 1290,
there were laws existing which regulated the proceedings and
decisions respecting marriages, and which do not appear after
wards to have been altered, it must be of more importance to
look to such laws, than to the rules of the general civil or
canon law : and it appears that there were such laws, and
that by them the intervention of a person in orders was neces
sary to constitute a valid marriage. The Institutes of Ed
mund direct that at a marriage < there shall be a Mass Priest
present, who shall bless the nuptials to all prosperity.' And by
a constitution of the Council of Winchester, in the time of
Archbishop Lafranc, (1076,) it was declared that a marriage
without the benediction of a Priest, should not be a legitimate
marriage. I see no reason to doubt the authenticity of these
ancient ordinances; and if genuine, they establish the fact,
that from the earliest times the laws of England differed upon
this subject from the civil and canon law, and required the
interposition of an ecclesiastical authority to make a valid
marriage."
48 INTRODUCTION.
A more extended consideration of the laws of the English
Church, at different stages of its history, will aid our inquiry.
And there are four great periods, during each of which the
laws received a strong and a distinct impress and character
from political and civil regulations.
First. The first period comprises the time from the planting
of Christianity to the coming of St. Augustine ; the second, from
that time to the Conquest ; the next, from the Conquest to
the Reformation ; and the last, the period since that event.
It is not necessary to enter into any minute statement of
the few memorials of history during the first period. It is
sufficient to say, that it is proven there were bishops in Eng
land in the year 314. Three of them attended the Council of
Aries of that year ; others were at Sardica in 347 ; and at
Rimini in 359.1 It has been claimed that the Pope, during
the Pelagian controversy, at the beginning of the 5th century,
sent a delegate into England to keep it to the faith. The
account of Bede is, that the British applied to the prelates of
Gaul for aid ; that they held a great synod, and elected Ger-
manus and Lupsus to proceed to England.2
Without attempting to detail the scanty records of that
period, I cite a statement of an eminent writer of England,
upon this subject :
Dawson, in his Origin of Laws, after stating various histo
rical matters respecting the Church, in the first six centuries,
thus concludes (Book vi. cap. 4): "From all which put to
gether and well considered, these four things are plain and easy
to be observed. First, That the Britannic Church had its
ancient laws and customs ; and, by consequence, had an es
tablished way and form of Church government long before
those days, (the coming of St. Austin.) Secondly, that it was
1 STILLINGFLEET Orig. Britt. cap. 2, p. 76. KEMBLE'S Saxons in
England, vol. 2. p. 355.
1 Ibid. 366, note.
INTRODUCTION. 49
held unlawful for them to change or alter any of these laws
or customs sine consensu suorum, as Bede (expresses it) : sine
consensu sua gentis, as Alfred (says) ; and, by consequence,
that all ecclesiastical matters were determined among them-
selves, and within the boundaries of their own nation, and not
in any wise subject to any foreign jurisdiction.
Thirdly, That the way which was used by them, for the
determining of such matters, was that of a national synod.
And, lastly, that the usual members of these synods were
optimates suorum, et alii viri docti, by which we suppose to
be meant their bishops and other learned men of the clergy ;
because Bede tells us, in the very next sentence, that when
the business about calling another synod was agreed on, there
met together, in a synod, seven bishops and many other very
learned men." (Book vi. cap. 5.)
Second. St. Augustine arrived in England in the year 596.
From that time down to the Conquest, there is a variety of
original documents in existence, which have enabled the his
torians of the Church to trace its history and institutions with
reasonable precision, and throw great light upon the canons
and law then prevalent.
Thus, in the preface to the Reformatio Legum, it is stated :
Sic neque Anglice nostra jam olim legum deer eta sapienter a
prudentissimis majoribus constitutes. Declarant id Bract-
honis nomethetica Ince Regis, Edwardi senioris, Aethelstani^
Eadmundi, Eadgari, Aluredi, Ethelredi, Canute, cceterorum
que principum auspiciis institutes sanctiones. Quce leges
quamdiu suam tueri authoritatem potuerunt, mguit aliqua
saltern in hoc regno moruni disciplina.
The labors of the Record Commission of 1821, have thrown
great light upon the antiquities of English law. In the vo
lume called the " Ancient Institutions of England," are pub
lished the laws of the Saxon kings, and other important docu
ments. The compilers, in a note, p. 4, distinguish between
50 INTRODUCTION.
the Laws, whether upon temporal or spiritual subjects, and
other Institutions. They term the latter Monumenta Eccle-
siastica, and print them separately.
The laws relate in many particulars to the affairs of the
Church. For example, that regulation which governed as
much as any authority, the decision in the Queen v. Mills, in
1846, that the presence of a priest was necessary to a lawful
marriage, is found among the laws of king Edmund in the
year 940 : " at the nuptials there shall be a Mass Priest by
law, who shall, with (rod's blessing, bind the union to all
prosperity."
Now all those of the Saxon Institutions which were termed
Laws, were made at the great Council or Witenagemote of
the realm, at which there was such a representation of the
laity as the times admitted.1
But among the Monumenta, is a work called Liber Pent-
tentialis, of Theodore, Archbishop of Canterbury. This con
sists of a full code of regulations respecting penance, made in
the year 669, and by the authority, it would seem, of the
Archbishop alone. So in the Capitula, cap. 38, it was pro
vided, that any presbyter w*ho should have obtained a parish
by means of a price, is absolutely to be deposed, seeing that
he is known to hold it contrary to the discipline of ecclesias
tical rule. Also, it is to be forbidden both to clerks and laics,
1 The prefix to the laws of king Inae, runs thus : " Ego Inae, &c., Rex
exhortatione et doctrina Curedis Patris mei, et Heddes Episcopi mei,
et Escenwaldes Episcopi mei. et omnium Aldermanorum meorum, et
Seniorum sapientum regni mei, multaqne congregatione servorum Dei}
constitui rectum conjugium et justa judicia pro stabilitate," &c. (Re
cord Commission, 498.)
The laws of Edgar begin: " This is the ordinance which king
Edgar, with the Council of his Witan ordained." And those of Ed
mund : "Edmundux Rex congregavit magnum Synodum Dei ordinis,
et seculi apud Lundonie civitatem, cui interfuit CEda et Wulstanus
Archepiscopi, et alii plures Episcopi, perquirentesde consilio animanum
nostrarum et eorum qui subditi sunt illis."
INTRODUCTION. 51
that no one shall presume to give any church whatever to a
presbyter, without the license and consent of the Bishop.1
In 673 was held the Synod or Gemote of Hertford, under
Archbishop Theodore. By the seventh article, similar meet
ings were to be held twice a year. It is said by Dr. Burns,
that this was one of the few National Councils held in Eng
land.
In 680, a (remote was held at Had field, in the presence of
the kings of Northumberland, Mercia, East Anglia, and Kent.
Several ecclesiastical acts were made, and at the same time a
Witenagamote was held, probably, it is said, to sanction the
decision of the clergy.
I quote this from KEMBLE'S Saxons in England, vol. ii.
263, who refers to Bede, book 4 and 5.
In 742, a great council was held under Edelbend of Mer
cia, and Cudbeorht, Archbishop of Canterbury. Its acts are
signed by clerks and laymen respectively, and it was clearly
a "Witenagemote.
In 787, 793, 794 gemotes were held at various places,
which are termed conventus synodalis, concilium, and con
cilium synodale. In 798 a gemote, also called synodus, was
held, in which the business recorded was merely secular.
Before the signatures occur the words, " Haec sunt nomina
Episcoporum ac principurn qui hoc mecurn in synodo con-
sentientes subscripserunt." The signatures comprise the
names of several laics, and Mr. Kemble considers this a proof
that the term synodus was not confined to ecclesiastical
meetings.
There is one document among the Monurnenta which
merits particular notice. King Alfric addresses Bishop Wul-
1 See KEMBLE'S Saxons in England, vol. ii., p. 263. He cites Bede,
to the point that Theodore was the first Archbishop whose authority
was universally acknowledged in England. Lord Coke says that a
Synod was termed, in Saxon times, a Church Gemote.
52 INTRODUCTION".
funus thus, (p. 441,) "Alfricus, an humble brother to the
venerable Bishop "Wulfunus: Peace in God. Obtemperavi-
mus jussioni tuse libenti animo, sed non ausi fuimus aliquid
scribere de Episcopali gradu, quia vestrum est scire quomo-
do vos oportet optimis moribus exemplum omnibus fieri, et
continuis admonitionibus subditos exhortari ad salutem quse
est in Christo Jesu. Dico tamen quod ssepius deberetis vestris
clericis alloqui. Nos vero scriptitamus hano epistolam qus&
Anglice sequitur quasi ex tuo ore dictata sit et locutus esses
ad clericos tibi subditos, hoc modo incipiens." Then follow
various injunctions to the clergy.
From these citations there is ample reason to conclude,
that a great principle of the Saxon Church was that which
we find so strongly asserted in later times, viz., that while the
councils of the clergy were sufficient to establish laws for the
government of the clergy, yet where the laity were concerned,
they must have been passed or ratified by the Witan, in which
a representation of that order existed.
And accordingly, a very learned writer thus expresses
himself, " Even so in the Saxon times, if there was any sub
ject of laws for the outward peace and temporal government
of the Church, such laws were properly ordained by the king
and his great council of clergy and laity intermixed, as our
acts of parliament are still made. But if there was any doc
trine to be tried, or any exercise of pure discipline to be re
formed, then the clergy of the great synod departed into a
separate synod, and there acted as the proper judges ; only
when they had thus provided for the state of religion, they
brought their canons from the synod to the great council, to
be ratified by the king with the advice of his great men, and
so made the constitutions of the Church to be the laws of the
realm. And the Norman revolution made no change in this
respect. Thus the case stood till the act of submission of
25th Henry VIII.1
1 KENNETH Ecclesiastical Synods, p. 249.
INTRODUCTION. 53
I gather also that the instances I have quoted of the acts
of archbishops singly, were merely monitions and counsels, of
great weight and authority indeed, but not partaking of the
character or force of laws, obligatory even upon the clergy.
Third. But the year 1066 brought the Conqueror to England.
His banners had been blessed by the Pope, and gratitude and
policy led him to assist in the subjugation of the liberties of
the English Church. Then commenced an earnest contest,
the history of which may be read in the statutes at large as
profitably as in any records of history. Few labors would be
more interesting, and few better adapted to serve .and il
lustrate the cause of the true, the primitive, the unshaken
Anglican Church, than to trace its struggles in the acts of
parliament. But I must be content with a passage from the
opinion of the court in a celebrated case where this subject
was largely discussed. " Let us look further, and see whether
the former laws made by King Edward the first and Edward
the third against the usurpation of the Bishop of Rome, were
not grounded upon the like cause and reason. The statute
38 Edward III., expressing the mischief that did arise by
breves of citation, which drew the bodies of the people, and
by bulls of provision and reservation of ecclesiastical bene
fices, which drew the wealth of the realm to the court of
Rome, doth declare — that " by these means the ancient laws,
customs and franchises of the realm were confounded — the
crown of the king diminished and his person defamed — the
treasure and riches of the land carried away — the subjects
molested and impoverished — the benefices of holy Church
wasted and destroyed — and divine service, hospitality, alms
deeds and other works of charity neglected." (Case of Prcs-
munire, Sir JOHN DA VIES, Rep. 86.)
The legislation of the Church after the Conquest to the
Reformation, (exclusive of the acts of parliament,) is con
tained in the legatine and provincial constitutions. The for-
54 INTRODUCTION.
mer are to be found in the ordinances of Otho and Othobon,
commented upon by John of Athon ; the latter, in the nume
rous constitutions of the Archbishops, collected by Lynwood,
with his glosses upon them.
It is true that, as a partial concession to England, the
Popes constituted the Archbishops of Canterbury their Legates,
so that they ultimately became known as Legati nati ; but
their provincial regulations were binding, not because they
were Legates, but because they were Archbishops holding
provincial synods. There is much reason to believe that the
laws of the legates Otho and Othobon, were not regarded as
obligatory without some recognition in the councils, or that
they had become ratified by use and custom.
Bishop Stillingfleet, in many instances, speaks in this
manner: "By the old provincial constitutions, (which are
still in force so far as they are not repugnant to the laws of
the land,) those who have the smallest cures are called pas
tors," &c.
" Our" authority herein is not derived from any modern
constitutions or canons of the Church, (although due regard
ought to be paid to them,) but from the ancient ecclesiastical
common law in this realm, which still continues in force.
There is a common law ecclesiastical, which although in
many things it may be the same as the canon law which is
read in the books, yet it hath not its force from any papal or
legatine constitutions, but from the acceptance and practice
of it in our Church. I could easily show, if the time would
permit, that papal and legatine constitutions were not re
ceived here, although directed hither ; that some provincial
constitutions never obtained the force of ecclesiastical laws."
(Duties and Rights of Parochial Clergy, p. 48.) At page 249,
the Bishop enumerates a number of papal canons which had
not been adopted into the law of England.
Bishop Gibson (Codex, preface, p. 28,) cites two cases, one
INTRODUCTION. 55
from the constitutions~of Otho, and the other from Othobon,
as not recognized in English law. One of them is of so much
importance that I extract it in full in the note, with John of
Athon's gloss, and the constitution of Stephen upon the same
subject, with the gloss of Lynwood.1
The substance of the authorities stated in the note, is this :
The regulation (a provincial regulation) of Archbishop Ste
phen, in 1222, declared that rural Deans should not have ju
risdiction in matrimonial cases ; but directed that it should be
committed viris discretis. Lynwood insists that under this
phrase a cause might be specially delegated by the Ordinary
to a rural Dean, if a discreet person, as well as to any other
person thus qualified. But the constitution of the legate
!The constitution of Othobon, (1268,) is this.— " De delegatione
causarum. — Proinde sacris canonibus inhaerentes quibus statutum est,
ut non nisi personis in majori statu constitutis causse a Sede Apostolica
delegentur, eadem juris aucthoritate commoti statuimus, ut ab Archi-
episcopis, Episcopis, vel aliis ordinariis non nisi personis in dignitate
vel officio constitutis, aut cathedralium vel aliarum ecclesiarum colle-
gialarum canor.icis causse aliquatenus committantur."
Lynwood, in his Comment on the Constitution of Stephen, (1222,)
De judiciis, lib. ii. tit. 1, as to the phrase viris discretis, says: u Sed
nunquid Decanus ruralis ex commissione speciali possit cognoscere in
causa matrirnoniali si sit vir discretus et jureperitus ? Puto quod sic ;
prresertim si talis commissio non concernat ejus officium principaliter,
sed potius ejus circumspectionem et prudentiam. Sed contra hoc op-
ponitur ea quae leguntur in coristitutione Othoboni. " Judicii Robur,"
(the above cited constitution,) ubi statuitur quod causes non commi-
tantur nisi personis in majori statu, &c. SOLUTIO : ilia constitutio non
fuit a subditis acceptata, ut dicet ibi Jo. de Athona ; unde non videtur
arctare } ad quod vide ibi Remissiones. Et hoc verum maxime cum
de jure communi ordinarius quilibet in causarum cognitionibus com-
mittere valeat vices suas, his qui peritiam et exercitium in talibus
habent."
Now this constitution of Stephen, in 1222, runs thus: — " In causis,
et infra, statuimus ut Decani rurales nullam causam matrimonialam
de catero audire praesumant, sed earum ^examinatio non nisi discretis
viris committatur."
56 INTRODUCTION.
Othobon, in 1268, plainly forbade this. This constitution was
held not to be binding in the realm, because not accepted, and
therefore the former regulation was the law.
It becomes important to understand the meaning of the
term subditis, in these constitutions. Generally, I apprehend,
it signifies the inferior clergy ; but on other occasions, it em
braces all who are subject to the enacting power. Now,
when we find that a constitution of a Legate is pronounced
not binding because not received, the question is, by whom
it could be received so as to give it authority? And this, it
is presumed, must have been by the Archbishops and Bishops
in the provincial councils.1
There was a constitution of Otho, (1237,) followed by one
of Othobon, (in 1208,) prohibiting leases of Church lands for
more than five years. But in a constitution of John of Strat
ford, in 1342, it is recited, that the religious and others of
the province (Canterbury) assert, that those constitutions
were not binding upon them; and it was then declared that
all persons violating that, or the present constitution, should
be subjected to punishment. (Constitutiones Provinciales, &c.,
p. 44. Ed. of Lynwood and John of Athon, 1689.)
«-. Again, as to the operation of provincial constitutions, it
was laid down by Newton, in the case of the Prior of Leeds,
20 Henry VI. 12, (1441,) cited by Lord Hardwicke, that the
Ordinary by his convocation had power to make constitutions
provincial, by which ceux de Sainte Eglise shall be bound ;
yet they cannot do anything which shall bind the ternporalty.
In the Abbot of Waltham's case, 24 Ed. IV., the same
[/ Shakespeare, the wannest of patriots; had a correct notion of
canon law. Surrey says to Woolsey : —
"You wrought to be a Legate, by which power
You maimed the jurisdiction of all Bishops."
(Henry VIII., Act 3 2.)
INTEODUCTION. 57
doctrine was insisted upon in argument ; and it was urged
that the convocation among the clergy was as powerful, as
the parliament among persons temporal, because every abbot,
prior and beneficed clerk, is privy and party to the convoca
tion. The case went off on another ground.
Now Lynwood was employed in offices of distinction in
the reign of Henry Y., and died in 1446, the 25th year of
Henry VI. The decision, therefore, in the 20th year of that
king, could scarcely be expected to find a place in his work.
Chief Baron Gilbert says: "The project of Edward the
First (about 1290,) was to have the clergy as a third estate ;
the Bishops and a sufficient body of clergy to sit together and
make canons to bind the ecclesiastical body ; and his great
object was to get the sanction of this assembly to taxes and
assessments upon the clergy. The latter insisted that they
could not meet under a temporal authority to make laws for
the Church. The Bishops and Archbishops were loth that
the clergy should be allowed to share in the making of canons
which formerly were made by their sole authority; for even
if these canons had been made at Rome, yet, if they were not
made in a general council, they did not think them binding
here, unless they were received by some provincial constitu
tion of the Bishops." (BURNS, vol. ii. p. 22, citing GILBERT'S
Exchr.)
The subsequent passages show how the scheme was de
feated, and it resulted in the convocations separately called
in the provinces of Canterbury and York. They show, also,
the resistance of the clergy to the assumption that the prince
had any authority to convene synods ; and illustrate the ques
tion whether the Act of Submission (25 Henry YIIL, chap. 10,)
was not a surrender of the liberties and rights of the clergy,
not the recognition of a valid authority. This point has been
strongly contested. Bishops Gibson and Stillingfleet are on
53 INTRODUCTION.
the one side, and Lord Coke and Justice Foster on the other.
In my judgment, the great churchmen have overmastered the
great lawyers.
The learned Spelman, in his treatise " De Sepultura,"
(p. 179,) says : "The canon law as adopted here — the national
and provincial councils, — all these together, as they have been
heretofore in use, and are not repugnant to the laws and re
ligion of the kingdom, or repealed by the statutes of Henry
VIII. , or of later times against papal usurpation, are still in
force, as I conceive."
Again — Let the decision in Middleton v. Crofts (2 Atbyns,)
be closely examined. The question arose upon an article in
the ecclesiastical court, for being married out of canonical
hours, without license or banns, and in a private house. A
prohibition was applied for, upon which occasion Lord Hard-
wicke delivered his celebrated opinion.
' First. It was decided that the canons of 1603 (which
were very express to the point) did not govern the case, be
cause they did not bind the laity, for want of a representation
in making them.
Secondly. The second question is thus stated by Lord
Hardwicke himself: " If lay persons cannot be prosecuted or
punished by force of these canons, whether the court had ju
risdiction of such a cause against them by the ancient canon
law, received and allowed within the realm of England ?"
And the Third question was whether, assuming that the
spiritual court had such jurisdiction, it had been taken away
by certain statutes inflicting a penalty ?
The first point being decided, as above stated, the court
determined the case and refused the prohibition on the sec
ond ; and then held that the statutes referred to in the third
did not take away jurisdiction.
The ground of the decision of the second point becomes,
therefore, very important. Lord Hardwicke says, "It re-
INTRODUCTION. „ 59
mains to be inquired whether that part of the canon law
which prohibits clandestine marriages hath been received
and allowed in England."
" The canons of the Council of Lateran in the decretals
cum Inhibitor which contain a general prohibition against
clandestine marriages, and require publication of the banns
by a minister in the Church, were adopted into the canons of
the Church of England by the convocation held at London in
the year 1328. LYNWOOD, Lib. 4, Tit. 3, De Clandestine!,
Dispensations, says : " It inflicts the punishment of suspen
sion on the clergyman for three years, offending by celebrating
clandestine marriage," and then adds, "Et hujusmodi con-
trahentes pcena debita percellendo." Lynwood in his Gloss.,
on the phrase pasna debita, explains it thus : " Erit arbitraria
cum non exprimatur. Hodie vero sic contrahentes (ut aliqui
volunt) sunt ipso facto excommunicati ; so that he took it
that the contracting parties marrying clandestinely were
liable to the punishment of excommunication."
Lord Hardwicke then states that Dr. Andrews had cited
many entries from the Registry of Canterbury, showing that
the jurisdiction of proceeding by ecclesiastical censures for
marrying clandestinely had been received and allowed in
England ; and he adds that a long course of such precedents
would be of great weight in a case of this nature, though a
few instances would not, because they might have passed
sub silentio.
His lordship then cites the case of Maltingby vs. Martin,
1 Jones, 257, as in point; and refused the prohibition, except
so far as related to proceeding for marrying at an uncanonical
hour, which being solely forbidden by the canon of 1603, was
not a violation of a law binding upon the layman.
In considering this subject, great attention must be paid
to the distinction between the statute 25 Henry VIII. cap.
21, and that of the 25 Henry VIII. cap. 19. The former
60 INTRODUCTION.
plainly refers to the canons and laws prescribed by a foreign
power, mainly the Pope ; and these it expressly declares, rest
not for any obligation they possess upon the power of a foreign
prince or prelate, but because the people had taken them to
be used among them, with the sufferance of the king, and
established as laws by such sufferance, consent, and custom.
But the other statute declares, " that the canons, constitutions
and ordinances, synodal or provincial already made, not re
pugnant to the laws and customs of the realm, &c., shall
still be used and executed as they were afore the making of
the act ; " manifestly referring and chiefly referring to that
great body of English constitutions, &o., which had formed
the law, and was to remain in force until the body of law to
be framed by the thirty-two commissioners was adopted.
Fourth. The last period of the English canon law, was
that from the date of the Reformation to the present time.
But for the purpose of this work, it is necessary, and only
necessary, to ascertain the state of the law at the period of
the settlement of the Church in the colonies. It is of course
not possible to mark that period with precision ; but no
greater difficulty attends the subject than in relation to Eng
lish civil laws. In a late case in Georgia, (Beal vs. Fox, Ex.
4 Georgia, Rep. 404,) there is an admirable and full discussion
of the point. The question was in relation to the prevalence
of the statute 13 Elizabeth, Of Charitable Uses. It was held
that the period of colonization was the proper period, and at
that time the statute was of course in operation. The sera of
colonization, it was urged by counsel, was properly when
Georgia became a royal government."1
We cannot practically err if we place this period at the
date of the royal charters to the colonies respectively, if fol-
1 See also 2 Mass. Rep., 189 N.; De Ruyter and St. Peter's Church,
3 BARBOUR'S Ch. Rep. New-York.
INTRODUCTION. 61
lowed by a settlement, or the period of the first erection of a
Church and public worship in a Colony.1,
"We have then all the noble statutes of Henry, Edward,
and Elizabeth, the injunctions of the two latter in 1547 and
1559, — the Synod of Archbishop Parker, 1571, the Artlculi
pro Cleri of 1584 — the Capitula of London 1597, and the canons
of 1603, to make up, together with all previous institutions
not superseded, the English canonical law as it then existed.
(See Dawson, Book 6. chap. 8, page 157.)
But this body of the law, or a large part of it, became sub
ject in England to important modifications, and to others
in our own country. Thus the canons of 1603 in a great
measure superseded the injunctions and institutions above
mentioned ; and as to those canons themselves, there are
several considerations of moment. In consequence of the act
of submission, convocations have been rarely called, and when
called, have merely passed upon some formal matter. From
this it has arisen that the canons have not been adapted to the
numerous changes in the situation of the Church in many
points affected by them. Some have grown obsolete — some
incapable of being enforced — others superseded by statute
law. Thus in the preface to Cardwell's Synodalia, (p. 24,)
it is remarked " that these canons were passed at a period
when the state of society was different from its present condi
tion, and legislation was carried into matters of extreme
detail. That there were some it would now be unwise to
observe, and impossible to enforce. If we inquire how they
are to be regarded, we answer, 1st. that owing to acts of
the supreme legislature, the cases of real difficulty, such for
1 On the 19th of December. 1606, the first ordained Minister of the
Church of England, embarked as a missionary for the shores of Amer
ica. In the Spring of the year 1607, the Services of that Church were
first administered on this continent. An humble building was reared on
the bank of James River, in Virginia. What a diffused and holy light
has sprung from that lowly altar !
5
62 INTRODUCTION.
instance as relate to the treatment of Dissenters, are actually
removed, and the few cases that remain may be met by other
considerations ; and 2d. that the enacting power having either
abdicated or been dismissed from its office, it would seem ir
rational to wait for the same power to remodel its former
measures, rather than to resort to the authority next in order,
and to act according to its judgment or counsel." He enume
rates a number of the canons actually or virtually superseded ;
and observes that " the authority from which they proceeded is
virtually extinct, and that the high spiritual persons whose
jurisdiction is next in order to that of a synod, though they
are not competent to annul a canon formally, are competent
to instruct and direct the conscience as to the continued ob
servance of it."
So Bishop Stillingfleet (Rights and Duties, &c., 261, 267,)
enters into a long discussion as to the force of custom and
disuse to vary and extinguish the obligation of canons. This
work was published in 1698.1
Next. The canons are subject to further numerous excep
tions and modifications in our own country.
In examining the canons of 1603 we shall find that the
great bulk of them are not binding in our Church for various
reasons. Thus, in consequence of the revolution, and the in
dependence of our Church, numbers of these canons were su
perseded. Not that the principles of some of them did not
remain, but not in the form therein declared. The first
twelve are of this description. The 13th to the 76th
inclusive are either inapplicable, (such as those relating
to colleges,) or the subjects are provided for and regulated by
canons of our own. There are a few exceptions which will
be afterwards noticed. The 77th, 78th and 79th, are wholly
inapplicable. The 127th to the 141st are local in their na
ture, and have no bearing here.
1 See also ARCHBISHOP SHARP on the Rubrics and Canons, Dis
course 5.
INTRODUCTION. 63
The result of the preceding investigations, it is submitted,
is this :
First. That the body of the foreign canon law is presump
tively without force or authority in England; and that in
every particular case where it is sought to render one of its
regulations available, the burthen of proving that such regu
lation had been adopted in England, rests affirmatively upon
the party adducing it.
That the legatine constitutions of Otho and Othobon stand
upon the same footing.
^Second. That the provincial constitutions have the pre
sumption of legality and obligation attending them ; and
whenever applicable to a given case, impose the task upon
the adverse party of showing why they should not prevail.
Third. That in addition to these elements of law, the
statutes of the realm, the decisions of the civil tribunals, the
cases and precedents in the spiritual courts, made up the body
of that system of regulations known as the Ecclesiastical Law
of England.
The comments and writings of eminent men were also
sources of information ; and all these, except the statutes,
formed the testimonials and witnesses of the common law of
the Church, in the same manner as similar records and reports
are the evidences of the common law of the realm.
Fourth. That the canons of 1603, as well as the acts after
the Reformation, also constituted a portion of that law bind
ing upon the clergy, but only binding upon the laity where
admitted by long custom, or express recognition of the civil
tribunals.
This, then, formed the great body of the English ecclesi
astical law, when the Church was planted in this country ;
and this constituted the body of the law of the Church in the
colonies. Many modifications arose from specific provisions
of charters, or particular laws of the colonial assemblies, as
64 INTRODUCTION.
well as from those changes in the situation of the people and
usages of the community, which rendered some provisions
incompatible or inapplicable. Then came the Revolution. It
brought with it many necessary alterations in the law and
discipline, as it did in the liturgy of the Church. These have
become sufficiently defined in our system. And then the
constitution of the Church at large, and the organization of
the several dioceses, have led to a body of regulations partly
original, partly adapted ; and these, with statutes of the civil
authority, cover a very extended field of law.
But there will yet remain many cases not provided for.
In these, I submit, we are to ascertain what was the law of
the English Church. By that, such cases are presumptively
to be decided ; leaving it to be shown that such law is repug
nant to some principle, settled custom, or institution of our
own, secular or ecclesiastical.
Again, — another proposition results from these views, which
it is supposed will meet with little objection : that upon every
question of construction of a phrase or precept, its admitted
acceptation in the English law is to prevail, until otherwise
expressly interpreted.
I may state the result in these propositions:
1. The English canon law governs, unless it is inconsis
tent with, or superseded by a positive institution of our own.
2. Unless it is at variance with any civil law or doctrine
of the State, either recognized by the Church, or not opposed
to her principles.
3. Unless it is inconsistent with, or inapplicable to that
position in which the Church in these States is placed.
And let it not be thought, that in this loyalty to the
English law, we abjure the liberty of a National Church, or
admit a subserviency to a foreign authority. We do not
break in upon the principle embodied in the statute 25 Henry
INTRODUCTION. 64
VIII.,1 and asserted in the noble language of the declaration
of liberties of the Church in Maryland.3
In submitting to the guidance of English authority, we ren
der no other allegiance than every honest judge in the land
renders to the decisions of Westminster Hall in civil matters.
These decisions are the witnesses and testimonials of the
law, liable to be discredited, open to controversy; but stand
ing, until this is done, sure and faithful witnesses. So the
cases in the ecclesiastical courts are the credible expositors of
English canon law ; and it is that law to which we are to re
sort for guidance in all unsettled points. We shall find this
submission more useful and more noble than the license and
the anarchy of an unrestricted, undirected, and unenlight
ened judgment.
Yet it is not that the foreign canon law is to be disre
garded. That of which Lord Stowell declares, that " what
ever may be thought of its pretensions to a divine origin, it is
deeply enough founded in human wisdom : " — that which
continues to influence even the stern features of the Scottish
1 "The realm, of England hath been and is free from subjection to
any man's laws, but only such as have been devised, made and ob
tained within this realm for the wealth of the same, or to such other
as, by sufferance of the king, the people of this realm have taken by
their own consent to be used among them, and have bound themselves
by long use and custom to the observance of the same, not as to the
observance of any foreign prince, potentate or prelate, but as to the
accustomed and ancient laws of this realm, originally established as
laws of the same by the said sufferance, consent and custom, and none
otherwise." (25 Henry VIII. c. 21.)
>J " We consider it as the undoubted right of the Protestant Episcopal
Church, in common with other Christian churches, under the American
Revolution, to complete and preserve herself as an entire Church,
agreeable to her ancient usages and professions, and to have the full
enjoyment and free exercise of those purely spiritual powers which are
essential to the being of every church or congregation, and which?
being derived only from Christ and his Apostles, are to be maintained
independent of every foreign or other jurisdiction, so far as may be
consistent with the civil rights of society."
66 INTRODUCTION*
Reformation, may not be contemned.1 Bat let it be resorted
to with caution, and watched with the jealousy of the great
doctors of the English Church. " It sprang from the ruins of
the Roman empire, and the power of the Roman pontiffs/'
and partakes largely of the spirit of absolutism which might
be expected from its origin.
The application of tljese principles to particular cases will
frequently appear in the following treatise. It will be useful,
however, to point out some of an important character.
For example. "What is the law of the Church as to the
performance of the Burial Office ? Is it obligatory upon a
minister of a parish to read that service over a parishioner, a
right to burial within the precinct, and a proper notice being
presupposed?
We have no special regulation upon the subject. All I
believe that is to be found is the rubric in the Burial Office,
providing that it is not to be used for any unbaptized adults,
any who die excommunicated, or who have laid violent hands
upon themselves. This corresponds with the rubric in the
English Prayer Book, except that in our own, the prohibition
relates to adults only ; in that it extends to infants.
Although the English rubric was not drawn up until 1661,
yet it must not be considered as a new law, but merely ex
planatory of the ancient canon law, and of the previous usage
in England.2
It can scarcely be argued that any inference from the
rubric by itself is equivalent to a positive law of the Church
on the subject. Certainly it allows, but it does not com
mand the service. What then was the English law ?
Lord Stowell uses this language : " About the year 750,
spaces of ground adjoining the churches were carefully en
closed, and solemnly consecrated, and appropriated to the
1 See FERGUSON'S Consistorial Law of Scotland. Introduction.
* Shephard, cited by Bishop Brownell. Fara. Pr. Book, p. 394.
INTRODUCTION. 67
burial of those who had been entitled to attend divine services
in the churches, and who now became entitled to render back
into those places their remains to the earth, the common
mother of mankind, without payment for the ground which
they were to occupy, or for the pious offices which solemnized
the act of interment."1
This general law to a right of burial and the Church ser
vices was recognized in Exparte Blackmore, though a man
damus to compel burial in a particular spot was refused? and
in the King vs. Taylor, cited by Dr. Phillimore, from Sergeant
Hill's MSS. it was held " that an information was grantable
against a parson for opposing the burial of a parishioner in a
Church-yard, but as to the refusing to read the Service over
the deceased because he was never baptised, the King's Bench
would not interpose, that being matter of Ecclesiastical
Cognizance." 3
This law was embodied in the 68th canon of 1603, pro
viding " that any minister refusing to bury a body in such
manner and form as is prescribed in the Book of Common
Prayer, brought to the Church-yard after a convenient warn
ing, shall be suspended for the space of three months." There
are certain excepted cases.4
When, then, we find that at the adoption of the English
rubric, such was the law of the Church, we have an interpre
tation of it making it obligatory to perform the Service over all
except those enumerated ; and our rubric must receive the
same construction, and thus the refusal would be a violation
of a rubric.
And this leads to another question connected with this
1 3 Phill. Rep. 349.
2 BARN. & ALD. 122.
3 Burns by PHILLIMORE, vol. i. title, Burial.
* "Our Church knows no such indecency as putting the body into
the consecrated ground without the Service being at the same time
performed." Sir JOHN NICOLL, 3 Phill. 295.
68 INTRODUCTION.
subject, directly growing out of the rubric, and in which the
principle I am defending is of more pointed application.
The rubric directs that the Burial Office shall not be read
over unbaptized adults. Who are such ? The minister would
be justified in refusing the Service over one unbaptized in the
sense of the Church.
Here again, I am not aware of any exposition of the
phrase in any decision of the Church Diocesan or General in
our country. But the subject of Lay-baptism was discussed
in the General Convention of 1811. Bishop White states,1 that
it was the object of two gentlemen to obtain a declaration of
the invalidity of Lay-baptism, including of course a baptism
by any of the Congregational ministers. He says also that
there was an increasing tendency in some of the Clergy to ad-
minster Episcopal Baptism to such as desire it, on the alleged
grounds of the invalidity of a former Baptism.
He adds that a distinguished member of the Convention,
the Honorable Rnfus King, had brought with him a pamphlet
lately sent from England, containing a judgment in an Eccle
siastical Court of that country, in a case precisely in point.
It was occasioned by a suit brought by a Dissenter against a
parish clergyman for refusing to bury a child, who had been
baptized by a Dissenting minister. It was decided by the
Judge against the clergyman. The Bishop proceeds, " His
reasons, grounded altogether on the rubrics, must carry con
viction to every mind so far as concerns the question of the
sense of the Church of England. It is true that this does not
settle the question of the sense of Scripture. On the most
serious consideration of the subject many years ago, conviction
is entertained, that the Holy Scriptures and the Church are
not at variance on this matter."
The case referred to was no doubt that of Kemp. v. Wicks,
(3 Phill. Rep. 264,) decided in 1808.
L» Memoirs of the Church, page 280.
INTRODUCTION. 69
In 1841, the question was again brought before the tribu
nals of England. The case of Mastick v. Estcott was insti
tuted to obtain the decision of the highest tribunal, and ac
cordingly was appealed to the Privy Council, after passing
through the Arches. (2 Curteis* Rep. 692 ; 4 Moor's Privy
Council Rep. 104.)
The rite had been administered in the outward form used
in the Church, viz : by sprinkling the child with water in the
name of the Father, the Son, and Holy Ghost. It had been
done by a dissenting minister.
An abstract of the opinion in this case may be of interest.
First, it was declared to be admitted by all, that the above
form of administering the rite was essential. It had been
prescribed at the institution of the sacrament.
Next, that in very early, if not the earliest ages of the
Church, baptism by lay hands was practised, was allowed to
be valid, and not to be repeated. That after the time of St.
Austin, the ancient canons bear ample testimony to its uni
versal adoption or recognition ; and that this doctrine of the
ancient Church was sanctioned in England to its fullest
extent. The provincial constitutions, from the time of Lang-
ton, in the reign of Henry III., to that of Chichely, in that of
Henry V., are referred to, with copious citations from Lyn-
wood ; and the conclusion is reached that this was the un
doubted law of the English Church up to the time of the
Reformation.
The learned Judge then proceeds to examine the liturgy
of Edward the Sixth, and the Rubric, the Prayer Book of
Queen Elizabeth, and shows that the previous rule was un
changed. He then notices the canons of the convocation of
1575, and particularly that one which expressly prohibited
lay baptism ; and he quotes Bishop Gibson to the effect that
this canon was not inserted in the printed copy, and that he
could not tell the reason of the omission ; and after a full
70 INTRODUCTION.
examination as to the authority of the canon, the judge con
cludes that it never possessed effect or operation.
Then follows a minute statement of what was done at the
Hampton Court Conference in 1603, and the result is stated
to be, that although the persons engaged therein did all they
could to discourage lay baptism, yet they could not prevail
upon themselves absolutely to prohibit it, still less to declare
it null and void. The judge cites Bishop Fleetwood's work
upon the subject with much commendation, as showing the
judgment of the Church of England in the matter.
It is true that the doctrine as stated in Mastick v. Estcott,
met with much disapprobation. The general question is
largely entered into by Archdeacon Manning, with a strong
bias of opinion against the existence of the law as so declared.1
A distinguished divine of our own branch of the Church, has
also discussed the subject, and controverted the validity of lay
baptism at large.0 On the other side, the Rev. Mr. Maskell,
in a late work, has entered upon the topic elaborately, and
with great clearness supports the proposition, that the validity
of lay baptism, administered as before stated, was and is the
undoubted law of the English Church.3
Now, I do not presume to enter upon the question on
scriptural, or even historical and expository grounds ; but
1 The Unity of the Church, pp, 271—278.
2 OGILBY on Lay Baptism.
8 Holy Baptism, a Dissertation, by the Rev. William Maskell, chap
lain to the Bishop of Exeter. Chapter IX. is devoted to this question
of lay baptism. It occupies 47 pages. He concludes thus : — " With
respect to the judgment of the Church of England at present regarding
lay administration, I trust that it has been sufficiently shown, that now,
as of old, she recognizes and admits all baptisms to be valid, by whom
soever conferred, if done with the proper matter, and in the proper
form : also, that there is no evidence by which we may justly suppose
that the ancient permission which the Church gave to lay persons to
baptize, in cases of necessity, has during the last 200 years been with
drawn.'^
INTRODUCTION. 71
these decisions appear to me to settle the law of our Church,
and for these reasons.
They settle that the validity of Lay-baptism was the un
doubted law of the English Church when the rubric in ques
tion was introduced into the English Prayer Book, and that
the phrase " unbaptized " must receive a corresponding con
struction.
They decide that this was the law of the English Church
at the period of its being established here, whatever time is
assigned for that event. They therefore establish that such
was the construction of the rubric in the Colonial Church.
Our Church continued the English rubric with the change
before noticed as to infants. By doing so, it adopted the
English rule of its construction, that is, the English law on
the point discussed. It did this upon the same ground as the
courts of justice proceed upon, where a statute of England
has been in force in a colony, and is re-enacted by the state.
The decisions, interpreting a phrase in such a statute, are
received as law. If these decisions were made before our re
volution, they are treated as authoritative; if subsequently,
as evidence of the meaning. *
But as the cases in question were determined since the
revolution, they do not (upon the analogy presented) possess
greater force than as witnesses of the law. But they do pos
sess that force, and that must be overcome. It is perfectly
competent for us, to prove that they are not true exponents
of what was the law of the English Church, when that
law came with the Church to this land. But if we fail in
this, we fail in overthrowing their testimony, and the fact
that such is the law becomes incontrovertible.
I proceed to another illustration connected with the law of
marriage, viz., the prohibition of marriages within the degrees
72 INTRODUCTION.
as settled by the English Church. This leads to the vexed
question of the union of a man with a deceased wife's sister.
What is the law of our Church upon this subject ?
I look upon this question as one of the most severe tests
of the principle I am advocating. If no satisfactory and con
sistent explanation can be given respecting it, the truth of that
principle may be doubted.
And, first, let us inquire what was the law of the English
Church prior to the statutes of Henry VIII.
Bishop Gribson states it to have been that which was de
clared by the fourth Council of Lateran, (1215,) prohibiting
marriages within the fourth degree.
He considers this to be made out by a recital of the stat
ute 32d Henry VIII., cap. 38, (1541,) and the fact that the
records show frequent dispensations by the Pope for the fourth
degree, and none beyond.1
And it is probably this law which in the Institutions of
John of Stratford (1342) is referred to as among the canonica
impedimenta.
That this, however, was the law imposed upon the Eng-
glish Church during the usurpation of the Pope upon her
rights and usages, is indisputable. It is also the opinion of
very learned authors that the Church followed the computa
tion of the civil law for several ages ; and Gilbert denies the
assertion of Pope Alexander in the Decree of 1065, that the
canonical method had been the ancient custom of the Church.3
1 Codex, vol. i. p. 479. n. d.
3 Codex, vol. i.p. 494.
' The decree of the Council of Lateran was to remedy the gross in
conveniences which arose from that of the Council of Rome, (1065,)
under Pope Alexander, by which the prohibition was extended to the
seventh degree. (POYNTER'S Law of Marriage , &c., 101. u.)
In Butler vs. Gaskell, (Gilbert's Rep. 156,) first cousins, or cousins
german, are declared to be in the fourth degree, and to be at liberty to
intermarry, and it is said that this was the ancient sense of the Chris
tian Church, and even of the Church of Rome in the time of Pope
INTRODUCTION. 73
Without pursuing the inquiry minutely through the action
of Popes and Councils, it is conceded, I believe, (at least by
anti-papal writers,) that the Church was first governed by
the decrees of emperors on this subject, finally establishing
the civil law computation."1
But all former laws and institutions of the Church of
England were merged in the statutes of Henry YIIL, to which
attention must next be given.
The first act of this reign upon the subject, was the 25
Henry YIIL cap. 22. (1533.) This enumerated the Levitical
degrees, added to them the marriage with a wife's sister, and
enacted "that no person should henceforth marry within such
degrees."
Without detailing the minute examination I have gone
through, of the statutes, it appears to me that the statutory
law of England rested on the the act 32 Henry YIIL cap. 38.
That act was repealed in part by the 2 Edward YL cap. 23 ; was
repealed wholly in 1 Philip and Mary, and so revived in the
1st of Elizabeth, as to place it where it stood by the provision
of Edward. The law therefore as resulting from the statute,
was as follows: "All such marriages as shall be contracted
Gregory, for in writing to Austin, Archbishop of Canterbury, he says:
" In quarta generatione contracta matrimonia minime solverenier/'
1 The matter is fully discussed in TAYLOR'S Elements of the Civil
Law, (Tit. 13, $ 2.) Dr. Harris, in his Notes on Justinian. (Lib. 1,
Tit. 10,) says: '' Some authors supposed that Pope Alexander the 2d,
perceiving dispensations to be very lucrative to the Church, and at the
same time conscious that it had universally obtained, that persons
might marry in the fourth degree, began a new computation, according
to which the canonists have since reckoned all the degrees."
The prohibition by the Emperor Theodosius of the marriage of first
cousins, which appear to have been the first interference with the rule
of the civil law, appears to recognize that law as then in force.
Van Espen says : " Admodum autem verisimile est quod veteres
computaverunt gradus non juxta dictam computationem canonicam,
sed juxta computationem civilem. Ecclesia enim in similibus solita
fuit regulas suas legibus Imperii conformare." Juv. Ecc. Uri., p. 1,
Tit. 18, cap. 5.
74 INTRODUCTION.
between lawful persons (as we declare all persons to be lawful
that be not prohibited by God's law to marry,) such mar
riages being contracted and solemnized in the face of the
Church, &c., shall be deemed lawful notwithstanding any
pre-contract.
" And no reservation or prohibition (God's law except) shall
trouble or impeach any marriage without theLevitical degrees."
In the year 1563, a table of the prohibited degrees was
set forth which will be found in Gibson, page 499 ; and in
Burns, vol. 2 page 442 ; and by the 99th canon of 1603 it was
provided that no person should marry within the degrees pro
hibited by God's law, and expressed in"a Table set forth by
authority, in the year of our Lord 1563 ; and all marriages
so made shall be adjudged incestuous and unlawful. The
force of this canon is well stated in the case of Butler vs.
Gaskill, (Gilbert's Rep. 150,) !< It is objected that the canons
bind only ecclesiastical persons, and do not bind the laity,
because they have not the assent of the Commons and Tem
poral Lords ; but to this I answer that such Tables do show
the sense of the Church of England, and so are a proper expo
sition of the law of God, and by consequence ought to have
great weight with the Judges when they expound the Leviti-
cal law."
Under the statute law of England, interpreted and strength
ened by the canons, the following points have been decided.
That the marriage of a man with the daughter of his wife's
sister is prohibited. (Man's case, Croke, Elizabeth 228, 4.
Leonard 16. Wortley vs. "Watkinson, 2 Levins 254. Ellerton
vs. Gastrell, Comyns' Rep. 318.)
So a marriage with the sister of the mother of the first
wife, (Butler vs. Gaskill, Gilbert's Rep. 156,) and a mar
riage of an uncle with a niece was also virtually prohibited by
the precept which forbids a nephew to marry his aunt. (Lord
Raymond 464, 5. Mod. p. 170. Gibson's Codex. 499.)
INTRODUCTION. 75
In Hill vs. Good, 25. Car. 2 the point of marrying the
deceased wife's sister came under consideration in the King's
Bench. (See Yaughan's Rep. 302. 3 Keble 166.) Though
it was alleged that the precept prima facie seemed to be only
against having two sisters at the same time, and prohibition
to the Spiritual Court was granted ; yet in Trinity Term 26
Car. 2. after hearing civilians, they granted a consultation as
a matter within the statute 32 Henry YIIL, though the
former statute 28 Henry YIIT. had never been revived after
the repeal by Queen Mary. This case is cited by Yaughan in
Harrison vs. Burwell, (Yaughan's Rep. 206,) who adds, that
the statute was virtually revived, in which position he most
probably was in an error.
It will be seen that none of the cases cited above, are
within the letter of the prohibitions in the 18th chapter of
Leviticus. They have been held to be within the scope of the
law, because of being within the same degrees upon the doc
trine of parity of reasoning. This principle is admirably ex
pressed in the Reformatio Legum.1
In the case of Harrison v. Burwell, (Yaughan's Rep. 206.
2 Ventris 9,) a marriage with the wife of a great uncle was
held valid, because it was in the fourth degree.
In this case it was declared by the judges, "that but for
the provisions of the statute it would be difficult to prove that
they were civilly bound by the Levitical decrees in respect to
the lawfulness of marriages, unless the prohibition was also
clearly dictated by the natural law."
1 Duas regulas magnopere volumus attendi, quarurn una est ut qui
loci viris attribuuntur easdem sciamus i'ceminis assignari paribus sem
per proportionum et propinquitatum gradibus. Secunda regula est, ut
vir et uxor unam et eadem inter se carnem habere existimentur, et ita
quo quisque gradu consanguinitatis quemquecontingit, eodem jus uxo-
rem contingit affinitatis gradu ; quod etiam in contrariam partera eadem
ratione valet. (De Gradibus, cap. 4, p. 45. Ed. 1640.)
Lord Stowell, in Hutchins v. Denzilore, (l Consis., Rep. 179,) says:
76 INTRODUCTION.
Such was the law of England, until the Act 5 and 6
William IV., cap. 54, called Lord Lyndhurst's act. By that
statute, all marriages within the prohibited degrees of affinity
which had taken place before the 31st August, 1835, were to
be held valid, except a suit for nullity was then pending; and
all marriages thereafter, within the prohibited degrees whether
of consanguinity or affinity, were pronounced absolutely null
and void.
And since this act, the very late case of Regina v. Chad-
wick, has been determined. (Queen's Bench, January 1848.) l
In Ray v. Sherwood, (1 Curties' Ecc.,Rep. 197,) the suit
was brought by a father, to annul the marriage of a daughter
"I shall justify my interpretation by a quotation from the Reformatio
Legum. a work of great authority in determining the practice of these
times, whatever may be its correctness in matters of law."
Bishop Jewell, says: :' Albeit I be not forbidden by plain words to
marry my wife's sister, yet am I forbidden so to do by the words which
by exposition are plain enough. For when God commands me I shall
not marry my brother's wife, it follows that he forbids me to marry my
wife's sister. For between one man arid two sisters, and one woman
and two brothers, is like analogy or proportion." (Apud Gibson's Codex,
vol. i. p. 498.)
1 Queen v. Chadwick, (17 Law Journal, Rep. N. S. p. 33.) The
points determined were these: — The 5th and 6th William IV.. cap. 54,
renders void all marriages within the prohibited degrees, solemnized
after its passage, which were before voidable only, by sentence during
the life of the parties.
A marriage with a deceased wife's sister, contracted after the act,
was absolutely void.
The prohibited degrees of consanguinity and affinity, in 5 and 6
William IV., cap. 54, refer to the decisions of the ecclesiastical courts
at that time.
The degrees prohibited " by God's law," in 32 Henry VIII., cap. 38,
are those enumerated in 25 Henry VIII., cap. 22, and 28 Henry VIII.,
cap. 7.
This last position is sustained by the court, by an elaborate course
of reasoning. In substance it is, that the statute 32 Henry VIII., was
undeniably in full force before Lord Lyndhurst's act ; but that the pre
vious statutes were so far operative, as to afford the rule of construc
tion for the governing statute.
INTRODUCTION. 77
with the husband of her late sister. The court held, that
while the act saved the marriage (being before the 31st Au
gust, 1835,) from being void on account of the offspring, it
did not prevent the parties from being punished for an inces
tuous marriage.
My view, then, of the law of England, at the date of the
colonization of this country, may be summed up in the follow
ing propositions :
1. The statutes 25 and 28 Henry VIII. were not strictly
in force. There was therefore no statutory enumeration of
forbidden degrees.
2. The statute 32 Henry VIII. cap. 38, or that part of it
which bore on this subject, was the parliamentary enact
ment then existing. By this, marriages within the Levitical
degrees were prohibited as contrary to God's law — those
without were allowed. But,
3. It is to be noted that the distinction was carefully
made between the Levitical prohibitions and the Levitical
degrees. Many cases were decided as within the latter, which
are not expressed in the former. And again it is to be noted
that the phrase " G-od's Law," as used in the statute, is not
identical with the Levitical prohibitions.
4. As the express prohibitions in Leviticus were few, and
did not in terms embrace numerous cases, plainly as repug
nant to even natural law as those enumerated, a rule of con
struction necessarily grew up, by which cases within the same
degrees as those prohibited, were adjudged to be within the
prohibitions.
5. Hence as the enumeration in the canon of 1563, has
been in many instances sanctioned by judicial decisions, and
as every case in it is within the three first degrees of the Civil
Law Computation, that canon, adopted by the 99th of 1603,
may be treated as the then English law, not by its own force
or effect, but as a recognized exposition of the statute.
6
73 INTRODUCTION.
6. And thus it may in fact be stated that by that law,
marriages within the three first degrees of the civil law com
putation were illegal, and beyond the third degree lawful ; and
that upon the question of affinity, those of the blood of the
wife are in the same relation to the husband as those of his
own blood ; and so conversely. Of course in the lineal line
the prohibition is ad infinitum.
It may then seem to be the result that this was the law of
the colonial Church in our land, and continued to be its law
after the revolution.
But here an important consideration arises. It can
scarcely be doubted that the English statute law as to the
prohibited degrees, was either not considered in the colonies
as part of the statute law prevalent here, or was superseded
by express statutes. This may be proven by the fact that
statutes were passed upon the subject in most of the Colo
nies, and from some judicial decisions.1 The instances of
1 In Virginia there was a statute of prohibitions at least as early as
1730. In 1769, the issue of marriages within the prohibited degrees
were declared illegitimate. In 1788 the degrees were extended, but
the issue legitimized. And so the law stood in the Revised Code of
1817, (p. 399.) and I presume is now the law of the State. (See also
2 LKIGH'S Rep. 717.) These statutes comprised the Levitical degrees,
aiuUalso the marriage of a man with the sister of a deceased wife.
In Connecticut by an act of 1715, the Levitical prohibitions were
adopted, and the marriage with a wife's sister was included. But the
present law does not include either a brother's wife, or a wife's sister.
In the Revised Code of Rhode Island, of 1844, (page 262.) in the
statute of prohibitions, reference is made to an act of 1749, and another
of 1754, which I have not had an opportunity of examining. The pre
sent law is similar to that of Connecticut.
By a statute of South Carolina, passed in 1706, it was declared that
all marriages within the table of degrees directed to be set up in every
Church were unlawful. The statute 32 Henry VIII. cap. 38 was then
adopted as an express section of the colonial act. There can be little
doubt that the table referred to was the English table.
There was an enactment in New Jersey in 1719. (cap. 94, $ 7,) by
which it was provided that " no marriages should be prohibited as
within any degree of affinity or consanguinity, but such only as by the
INTRODUCTION", 79
Virginia, Maryland, South Carolina, and New Jersey, where
in fact the English law was adopted, are very strong upon
this point.
If this is so, then of course it was not the law after the
laws or statutes now in force or hereafter to be in force in his Majesty's
kingdom of Great Britain, are, or shall be prohibited.'7 An act was
passed in 1795, (1 R. S- 1847, page 376,) which I understand is now in
force By this, the English table is adopted, except a father's brother's
wife, mother's brother's wife, wife's father's sister, wife's mother's
sister, wife's sister, brother's wife, brother's son's wife, sister's son's
wife, wife's brother's daughter, and wife's sister's daughter.
In Maryland, a colonial act of 1702 was passed to prevent all
illegal and unlawful marriages not allowable by the Church of Eng
land, but forbidden by the table of marriages," and it imposed a fine
upon any persons marrying within the degrees.
In 1777. the General Assembly passed an act that if any person
should marry with another related within the three decrees of lineal
direct consanguinity, or within the first degrees of collateral consan
guinity, each of them should forfeit £500, or be banished from the
State forever; or should marry within the other degrees set forth in
the table contained in such act he should forfeit £200. The table com
prehended a wife's sister, and brothers wife ; indeed was an exact
transcript of the English table of 1563. But in 1785 the act was
amended by omitting several of the degrees, viz : a father's brother's
wife, mother's brother's wife, wife's father's sister, and wife's mother's
sister, with others, and in 1790 it was again amended by omitting a
wife's sister, and brother's wifo.
There was no colonial law upon the subject in the province of
New-York, and it is certainly to be deduced from the opinion of Chan
cellor Kent, in Wightman vs. Wightrnan, (4 John C, R. 343.) that
the statute law of England did not prevail, " I incline to the opinion
that, as we have no statute upon the subject, arid no train of common
law decisions, independent of any statutory authority, the Levitical
degrees are not binding as a rule of municipal obedience. Marriages
out of the lineal line, and in the collateral line, beyond the degrees of
brother and sister, could not well be declared void, as against the first
principles of society."
It is to be remembered that by the then constitution of New-York,
the common law and such parts of the statute law of England as formed
the law of the colony on the 17th day of April, 1775, was the law of
the state. (See LATOUR vs. TUESDALE, 8 TAUNTON, 830. 2 KENT'S COM.
Page 74, § 5.)
80 INTRODUCTION,
revolution. Indeed, the latter is clear, even if the former
were doubtful.
Again. — It is equally certain, that the English canon, by
its own unsupported authority, did not bind the laity. The
case of Middleton and Crofts is as strictly applicable to this
question MS to that which was determined by it ; and it is
impossible to say that the canon in this instance was but a
recognition of prior established law.
Once more. — The legislation of the colonial civil authority
superseded as a matter of law, and to some extent, all canon
ical regulations otherwise binding upon the clergy, as well as
the statute law of England.
This proposition requires to be carefully stated and quali
fied.
It is to be remembered that marriage is to a great extent
a mere civil contract, peculiarly the subject of civil legisla
tion. The legitimacy of children, the right of succession, and
stability of titles are involved in it.
It was one of the points of papal usurpation, that the law
of marriage was established as distinct from and opposed to
the laws of sovereign states.1 In this aspect of the relation,
and in modern times, the municipal law is the predominant
rule of action. What is permitted by it is prima facie law
ful — what is forbidden is illegal. Hence, if a new municipal
1 For example, there were fifty-seven articles submitted to the con
sideration of the Bishops of Tuscany, by the Grand Duke Leopold, in
the progress of his reforms. Among them, as to this law of marriage,
it is stated : — " The important subject of marriage presented one pe
culiar feature, namely, that the opposition party would not agree to
the nullity, in a civil point of view, of mere promises, whether written
or verbal, as the Bishops of Pistoria, Colle, Chiuse and Loano would
have wished them. They agreed, however, with these enlightened
prelates, in admitting that there was a difference between the contract
and the sacrament, and even allowed that the sovereign possessed all
authority in regard to the former." (Memoirs of SCIPIO OE RICCI, vol. i.
p. 246.)
INTRODUCTION. 81
law has superseded an old one, the rule of action for every
citizen, in every relation of the subject, is primarily^ the new
law.
To take a plain case for an example : — Numerous institu
tions and canons of the Church of England, before the statute
of George II., called Lord Hardwicke^s act, required the so
lemnization of marriage in the parish church, the presence of
a priest, the publication of banns, &c., unless a special license
dispensed with these formalities.
And this was the law of the Church of England, as settled
in Middleton's case ; and let it be assumed that it was part of
the law of the land, brought into the colonies. But this rule
was entirely superseded by express legislation, or long esta
blished custom.1 It follows that every canon and rule of the
Church upon the matter, was necessarily superseded by this
change in the law of the land.
In like manner it is conceived that the law of the English
Church, irrespective of parliamentary enactment, as to the
degrees, was superseded by the law of the states ; but super
seded as matter of legal obligation, and no further. It left
our Church without -a definite rule, except that of the muni
cipal law, until she enacts a regulation of her own. In the
mean time, the clergy must be left to the guidance of their own
judgment and conscience. They who believe, with a host of
divines, that the prohibitions of Leviticus form part of the
moral law still binding on Christiaas,2 and that the cases
'One of the laws of the Duke of York (1664) was as follows: —
*c Whereas, by the law of England no marriage is lawful without a
minister whose office it is to join the parties in matrimony, after the
banns thrice published in the Church or a license first obtained, all
which formalities cannot be duly practised in these parts." — The act
then proceeds to appoint the mode of publication, and the officers to
perform the ceremony. (Collect. Hist. Soc., vol. i.)
In Ward v. Day, Prerog. Court, Nov. 1846, it was allowed that mar
riage in a colony is governed by the lex loci.
6th Article of the Churck
82 INTRODUCTION.
within the same degrees are within the prohibitions as much
as if so expressed, have a law unto themselves. They who,
while they do not regard the prohibitions as strictly obligatory,
yet look upon the rale which they furnish, and the exposition
of the English Church, as the safest guide for the conscience,
have a rale of action equally clear, if less stringent. Aftd they
who discard both principles, will look either to the civil law
for their direction, or to some other standard of their own
creation or adoption.
The action of our Church upon this subject, appears to
fortify the views above presented. In the year 1808, the Con
vention of Maryland adopted the English canon law as to the
degrees, and instructed their deputies to the General Conven
tion to report their canon, and to endeavor to obtain its adop
tion as the general law. This was referred to the House of
Bishops, who reported that agreeable to the sentiment enter
tained by them in relation to the whole ecclesiastical system,
they consider that table now obligatory on this Church, and
as what will remain so, unless there should hereafter appear
cause to alter it, without departing from the word of God, or
endangering the peace and good order of the Church. They
are however aware that reasons exist for making an express
determination as to the light in which this subject should be
considered. They recommended that the consideration be
postponed, from the lateness of the session and other reasons.
In 1817, the subject was again referred to the House of
Bishops, and that committee afterwards prepared the follow
ing declaration, which, however, was not acted upon: — "By
the Bishops, the Clergy and the Laity of the Protestant Epis
copal Church in the United States of America, in Convention.
The table of kindred and affinity, wherein whosoever are re
lated are forbidden to marry as established in the Church of
England, is received and established in this Church ; with the
proviso in reference to the prohibition of a man's marrying his
INTRODUCTION. 83
brother's wife, or his wife's sister, and of a woman marrying
her husband's brother, or her sister's husband : that although
the Church disapproves of such marriages because of tempta
tion to sin in the allowance of them, yet in the event of such
marriage, it shall not be a cause of repelling from the holy
communion. But it shall not be lawful for any clergyman
of this Church to celebrate such a marriage." (WILSON'S Me
moirs of Bishop White, p. 346.)
In the report which was to have accompanied this decla
ration, the committee said : " It must be held desirable, that
the laws of the land should prohibit th'e marriages now treated
of. But if this has not been done, it would seem that a
Church in such a land, however it may see cause to entertain
and to express disapprobation of them, should hesitate to re
ject from the communion on their account, unless there can
be alleged some divine law requiring such an act; for then
the sanction of the State ought not to extort the sanction of
the Church." (Ibid. 344.)
The report proceeds: " The running of the line between
the safe and the hurtful, is left to the determination of the
State and the Church, in their respective spheres. The Church
ought to accommodate her provisions to those of the State, so
far as it can be done without injury or damage to the morals
of her members. If the State should sanction what the
Church considers as not essentially sinful, but as affording
temptations to sin, she ought to discountenance it in such a
degree as Christian prudence shall dictate." (Ibid.)
In the year 1838 the subject was resumed, and a com
mittee was appointed by the House of Bishops, consisting of
Bishops Grriswold, Brownell, and Henry U. Onderdonk. In
1841, the two former reported that in their opinion it was
inexpedient at the present time to make any decision on the
subject. A minority report was presented by Bishop Onder
donk, in which he laid down that it was the duty of the
M IHTRODUOTION.
0eneml Conrention to legiftlat. on tin- .subject — ihnt thr rvil
"i pr-hii.itr, ,ratly moreasedsinoe the Ki^lwli
tab!,- rrasrd t,, I,,- obligatory in .Mir Clnirrli.
44He respectfully |.I..J,OM-S that tin- rntirr l^ii-lisii table
of prohibitions I-- -!.-.. -«rd l.y the lirnrral Convention, Unit
tahlr bein.' HI exact eon I'm mi ty with the law of liod.
44 He refrained from proposing any penal <\ mi ih, jmrii.^
intermarrying; bat as to tli v, he sugg^Mnl tli.it any
• »nr ..li..-i;»(iii:- ihonhl IT sliMplMidnl for M |>.TI.M! n,.t ]im tli.'in
two, nor more than teyen years; end thtit n nnmM.-r <>.>n-
IrjuMinj- surli a inarna-.-r .slmnlil br di«.|>l»HM-ii."
No art inn to.-k plaro in thr tVnvrntion, and thr suhjrrl
has not been resumed.
Thr roiiMdn.'iti.Mis ?io\v snl.nnttrd, njiprnr ti> jn>tily thn
OOnrlnsioii, thtit the l'.nijli>h ram.n l»\v upon tht> Mibjrrt of
the prohibition of innrri»i»rs dors n.»t ju.-vail in our rhnirh,
und that tins may br r\ph»iiiril nuisi>trnlly with thr i^rnrnil
prinnplo a9 to the foroo of that law, oMitriulrd fur in this
Work.
' Thr positions \vhirh in this Introilurt ion, 1 hnvr rn.h-avon-d
tOsnMmn arc- not nr^vd. inrrrly in thr h«>p«- that th.y may aid
in th.- mtrrpn-tati.Mi and ajipliration of thr luwsof thr I'imrrh.
Thr attrmpt is alhod to hn-Jirr inotivrsand tlr.-prr intrrr>t.s. A
rhnrrhman 1-y iuhoritanor, Ion- and rarnrst rxannnation has
roo|,-d tlir U-lirf in my mind. lh.-il in th,- I'roi.'-tant l-'.pi.srop.-il
(Imn-h, wr liavr thr nrarrst approach that llir world ran |>rr-
s.-nt. to thr rhuivh winrh thr Saviour anthon/rd Ins Apostlrs
to rslabh>h As 1 brlirv.- that all hopr of thr prrsrrvation of
our nnnvallrd rivil in-t it nt ions rrsts upon ihr prrvah-nrr of
, .so do 1 brlirvr that thr. niorr tho proplr aro
in th,- dortrin.-s and principles of thr I-'.pisropal
rimrrh. thr in.M'r snrrly will Iliosr- m-t it n I ions abhlr rvrry
assault ihry must rnrountrr. Thr rxposUiou of hrr laws
INTRODUCTION. 85
may assist in the promotion of that respect and love which
her tenets command, just in proportion as they are stu<li<t<J.
Her cautious .spirit — her firm yet well-tempered discipline — her
strong foundations in the Holy Scriptures — her stately columns,
sfn-ngthened by all historic evidence and primitive action —
the beautiful chastity of her garments of worship as she ap
proaches the Father of Spirits — and that most exquisite union
of Gospel truth and devotional fervor, the Book of Common
Prayer, — all combine to supply every thing that a pure ima
gination, an earnest piety, or an enlightened intellect, can crave
or deserve. Let but the spirit of forbearance and toleration
move among ourselves — let us but uphold her doctrines with
firmness and charity — let her holiness be exemplified in our
lives, — and the mind of the country will give way to her claims,
will imbibe her truth, and will spread her influence from the
vale to the hill-top, until the whole land rejoices in her presence.
" Yes," in the language of one of the most magnificent of Eng
land's orators, — " Yes, I would have her great, and powerful.
I wish to see her foundations laid low and deep, that she may
crush the giant powers of rebellious darkness. I would have
her head raised up to that Heaven to which she would con
duct us. 1 would have her open wide her hospitable gates,
by a noble and liberal comprehension ; but I would have no
breaches in her walls. I would have her cherish all those
who are within, and pity all those who are without. I would
have her a common blessing to the world ; an example, if
she is not permitted to be an instructor, to all who have not
the happiness to belong to her. I would have her give a les
son of peace to mankind, that a vexed and wandering gene
ration may be taught to seek for repose in the maternal bosom
of her Christian charity, and not in the harlot lap of indif
ference or infidelity." '
1 EDMUND BURKE.
CHAPTER I .
THE CONSTITUTION OF THE CHURCH AND THE
GENERAL CONVENTION.
Concilium sacrum venerandi culmina juris
Condidit, et nobis cougrua frana dedit.
(Carmen dechasticum Conilii Nicceni.)
TITLE I.
THE CONSTITUTION ITS HISTORY AND CONSTRUCTION.
" When the peace of 1783 completed the severance of the
colonies from the sovereignty of Great Britain, the separation
of the Episcopal Church from the guardianship and nurture
of that of England necessarily followed. It is true that the
connection, and to some degree an admitted dependence, did
not cease, until, by the consecration of three bishops, there
was within our own limits the power of continuing the suc
cession — an indispensable element of a perfect national
Church. For all purposes of government and discipline, how
ever, the separation was absolute. Linked together before by
the profession of the same doctrines, the use of the same lit
urgy and rites, subscription by its clergy to the same articles,
the prevalence of the same code of canon law, and subjection
to one bishop, the Church of the colonies was in theory a
compact and united body. Inadequate and inefficient as the
superintendence of the Diocesan of London was, yet the
great principle was recognized of the necessity of a bishop
for a perfect Church, and exertions were constantly made to
obtain the full benefits of the Episcopate for America.
88 CONSTITUTION OF THE CHURCH
But the all-engrossing and fierce struggles of the revolu
tion, unfavorable to the growth of religion, or the spread of
any body of Christians, were peculiarly fatal to a Church
founded upon the principles of that of England. Accordingly,
when peace arrived, it found the Episcopal Church prostrated
and overwhelmed — the object of political jealousy and hatred
— the object of bitter invective and persecution of sects, profit
ing by her downfall and exulting in her ruin. It found her
drooping in sorrow and in fear amid the broken pillars of her
temples, and the disjointed stones of her altars.
But the cause was not hopeless. Independent of the as
surance of the perpetual presence of her founder, there was
within these states a class of clergymen whose doctrines had
been imbibed at the purest fountains of the English Reforma
tion, whose faith had been strengthened, their intellects in
vigorated, and their prudence matured, by the scenes of diffi
culty and tribulation through which they had passed. They
brought to the great work of the re-establishment of the
Church a zeal, energy, and judgment worthy of the object,
and adequate to the task.
The primary matters for their consideration and efforts
were two. First, to procure the consecration of such a number
of bishops as to secure within the United States the perpetual
succession of the Episcopacy ; and next, to establish a system
of general union3 and to constitute a body to secure and ex
pand it.
The events and acts connected with the first subject do
not fall within the scope of this work. That recital full of
deep interest, belongs to the distinguished historian of the
Church, whose useful labors have been (unavoidably, no
doubt) too long intermitted.
The first influential step which was taken for the union
of the Churches of the states of which we have any record,
was at the meeting of various members of the churches of
AND THE GENERAL CONVENTION. 89
Philadelphia, held in May, 1784. They adopted the follow
ing as fundamental principles for the Church at large.
1st. That the Episcopal Church in these states is, and
ought to be, independent of all foreign authority, ecclesiastical
or civil.
2d. That it ought to have, in common with all other re
ligious societies, full and exclusive power to regulate the con
cerns of its own communion.
3d. That the doctrines of the Gospel be maintained as
now professed by the Church of England ; and uniformity of
worship continued, as near as may be, to the Liturgy of the
said Church.
4th. That the succession of the ministry be agreeable to
the usage which requires the three orders of bishops, priests
and deacons ; that the rights and powers of the same respect
ively, be ascertained ; and that they be exercised according to
reasonable laws to be duly made.
5th. That to make canons or laws there be no other au
thority than that of a representative body of the clergy and
laity conjointly.
6th. That no powers be delegated to a general ecclesi
astical government, except such as cannot conveniently be
exercised by the clergy and laity in their respective congre
gations. (BISHOP WHITE'S Memoirs, p. 72.)
In the same month of May, 1784, at a meeting of several
clergymen, held in New Brunswick for another purpose, the
subject of a general union was entered upon, and the result
was an invitation for a more general meeting to be held in
the city of New- York. Some discussion took place upon the
principles of ecclesiastical union. In consequence of the
pending application of Dr. Seabury, for consecration in Eng
land, further proceedings were postponed. Bishop White
remarks that the more northern clergymen were under appre
hensions of there being a disposition on the part of the
90 CONSTITUTION OF THE CHURCH
southern members to make material deviations from the
ecclesiastical system of England, in the article of Church
government. (Memoirs of the Church, p. 65.)
In September, 1784, a body of the clergy of Massachusetts
and Rhode Island, held a meeting at Boston, and adopted a
series of resolutions, most of them identically the same as
those declared in Philadelphia. To the first, was added a
clause that it should not exclude the churches, separately or
collectively, from applying to some regular Episcopal foreign
power for an American Episcopate; and to the fifth, it, was
added, that in the representative body, the laity ought not to
exceed, or their votes be more than those of the clergy.1
1 On the 8th of September, 1784, there was a Convention of the
Clergy of Connecticut, at New Haven, and it was resolved, that Mr.
Marshall shouiil attend the Convention to be held at New-York on the
first Tuesday after the Feast of St. Michael in October next, to repre
sent this Convention on that occasion, and that a letter be written to
that body to acquaint them with the reasons why the Clergy of Con
necticut cannot enter into any discussion of measures relative to the
settlement of the Church in the United States, previous to the com
pletion of the Church in this State, by having a Bishop among us.
On the very same day, (8th September, 1784,) the Convention of
the Clergy of Massachusetts and Rhode Island, before mentioned, was
helil at Boston, and a letter addressed to the Clergy of Connecticut, of
which the following is an extract. After adverting to the minutes of
the proceedings at Philadelphia in May 1784. it proceeds: — "It is our
unanimous opinion that it is beginning at the wrong end to attempt
to organise our Church before we have obtained a head. We cannot
conceive it probable or eren possible to carry the plan they have
pointed out into execution, before an Episcopate is obtained to direct
our motions, and by a delegated authority to claim our assent. It is
needless to represent to you the absolute necessity of adopting and
uniting in some speedy measures to procure a person who is regularly
invested with the powers of ordination, without which scarce the
shadow of an Episcopal Church will remain in these States. In case a
meeting of a representative body shall be agreed upon, we have dele-
gated a power to one of our number to represent us and our churches
in such a meeting. We are extremely desirous for the preservation of
our Communion, and the continuance of uniformity of doctrine and
worship, but we see not how this can be maintained without a common
AND THE GENERAL CONVENTION. 91
In October of the same year, (1784,) a number of clergy
men appeared in New- York, from the states of Massachusetts,
New Jersey, Connecticut, Pennsylvania, Delaware, Maryland,
Virginia and New- York ; but as the greater part of the depu
ties were not invested with powers to bind their constituents,
all that was done was to 'recommend a series of resolutions to
the churches in the several states, which should be considered
as fundamental articles of union. They were as follows :
1st. That there shall be a General Convention of the
Episcopal Church in the United States of America.
2nd. That the Episcopal Church, in each state, send
deputies to the Convention, consisting of clergy and laity.
3rd. That associated congregations, in two or more states,
send deputies jointly.
4th. That the said Church shall maintain the doctrines of
the gospel as now held by the Church of England, and shall
adhere to the liturgy of the said Church, as far as shall be
consistent with the American Revolution and the Constitu
tion of the respective states.
5th. That in every state, when there shall be a bishop
duly consecrated and settled, he shall be considered a member
of the convention, ex qfficw.
6th. That the clergy and laity, assembled in convention,
shall deliberate in one body, but shall vote separately ; and
the concurrence of both shall be necessary to give validity to
every measure.
The seventh article recommended the time and place of
the meeting, (Philadelphia, September, 1785,) with an earnest
request that clerical and lay deputies might be sent by the
churches of the states.
Accordingly, in September, 1785, delegates assembled in
head, anil are therefore desirous of uniting with you in such measures
as shall be found expedient and proper for the common good. Signed
S. GRAVES.— MSS. Rev. Dr. Jarvis.
92 CONSTITUTION OF THE CHURCH
Philadelphia, from the States of New- York, New Jersey,
Pennsylvania, Delaware, Maryland, Virginia and South Car
olina.
It may be useful to defer the consideration of the acts of
this first convention in order to glance at the situation and
action of the different churches in the states, prior to that im
portant period.
A convention was held in Maryland as early as August,
1783. There was then made a declaration of the fundamental
rights and liberties of the Protestant Episcopal Church of
Maryland. The independence of that Church of any foreign
or other jurisdiction, was declared, with its entire authority to
establish its own internal government. In June, 1784, the
laity were introduced into the convention, and they ratified
the previous acts. Certain principles were declared funda
mental, and conventions were to be held in every year.
In South Carolina, there was a meeting of vestries on the
8th of February, 1785, when the resolutions adopted at New-
York were read. A convention was held in July, 178f5 ; depu
ties were appointed, and it was resolved that they should be
left to act according to their judgment. (Dalcho, 466.)
In New-York, a convention of clergy and laity was held in
June, 1785. Three clerical, and three lay deputies were ap
pointed to attend the General Convention, and they were
authorized to proceed upon the points of business proposed for
deliberation, so far as they should conform to the general
principles established to regulate their conduct. At this
meeting a body of rules and regulations were adopted for the
government of the Church,
A convention was held in Virginia, in May, 1785. Depu
ties were appointed, and were furnished with such instruc
tions as to leave the convention of that state at liberty to
approve or disapprove of the proceedings of the General Con
vention, (Hawks' Contributions, &c., Journals, Vol. I. p.
AND THE GENERAL CONVENTION. 93
185.) The 1st, 2d, 3d, and 5th of the fundamental articles,
were approved. As to the 4th, the convention declined com
mitting itself upon the subject, until it should have been
revised in the approaching General Convention, and reported
to the Virginia Convention. As to the sixth article, it was
rejected, except that the mode was agreed to be used in the
proposed convention then to take place.
At the same convention the standing committee was di
rected to consider the proper steps to be taken to obtain the
consecration of a bishop, and a code of regulations was passed
for the order of the Church. Districts were made, and a
visitor appointed for each. (Hawks' Contributions, &o., vol.
i. p. 180, 181.)
A convention met in New Jersey, in the summer of 1785
Delegates were appointed with power to accede to the funda
mental principles published by the convention of the Church
held in New- York, in October, 1784, and to adopt such mea
sures as the said General Convention may deern necessary for
the benefit of the Church, not repugnant to the aforesaid fun
damental principles. (Journals, 1785.)
It was before stated that in Sept., 1785, the delegates
from the seven states met at Philadelphia. On the 1st of
Oct., 1785. the draft of an Ecclesiastical Constitution was
submitted to the convention by the Rev. Dr. Smith, of Mary
land, the chairman of a committee before appointed. It was
read by paragraphs and ordered to be transcribed. Nothing
further was done in that convention.
The second General Convention met on the 20th of June,
1786. The constitution was taken up and debated. Several
alterations were made, and on the 23J of June, it was unani
mously adopted. The title and preamble are as follows :
" A General Constitution of the Protestant Episcopal
Church in the United States of America —
7
94 CONSTITUTION OF THE CHURCH
"Whereas, in the course of Divine Providence, the Protest
ant Episcopal Church in the United States of America has
become independent of all foreign authority, civil or eccle
siastical " : —
The preamble then recited the meeting of deputies in
New-York in October, 1784, and the recommendation to send
deputies to Philadelphia in order to unite in a Constitution of
Ecclesiastical Government, agreeably to certain fundamental
principles expressed in such recommendation, and it pro
ceeded —
"And whereas, in consequence of the said recommenda
tion and proposal, clerical and lay deputies have been duly
appointed from the said Church in the states of New-York,
New-Jersey, Pennsylvania, Delaware, Maryland, Virginia,
and £outh Carolina: The said deputies being now assembled,
arid taking into consideration the importance of maintaining
uniformity in doctrine, discipline, and worship in the said
Church, do hereby determine and declare " —
Then followed the articles of the constitution. Most of
these are substantially the same as those now in force, as
will be seen hereafter, when they are stated at length.
The eleventh article was as follows:
"The Constitution of the Protestant Episcopal Church in
the \Tnited States of America, when ratified by the Church in
a majority of the states assembled in General Convention
wilh sufficient power for the purpose of such ratification,
shall be unalterable by the convention of any particular state,
which hath been represented at the time of such ratification."
(Bioren, 25.)
On the 24th of June, 1786, the following recommendation
was passed : " That the several state conventions do author
ize and empower the deputies to the next General Convention,
after we t-hall have obtained a bishop or bishops in our
Church, to confirm or ratify a general constitution respecting
AND THE GENERAL CONVENTION. 95
both the doctrine and discipline of the Protestant Episcopal
Church." (Ibid. 26.)
On the 10th of October, 1786, an adjourned convention
was held, at which the chief business was the consideration
of the letters by the Archbishop and Bishops of England.
The states of Virginia and Maryland were not represented in
this adjourned convention. Copies of the proceedings were
ordered to be sent to the standing committees.
The next meeting of the General Convention was in July,
1789. Bishops White, Seabury and Provoost had then been
consecrated.1 The former attended and presided, A com
mittee was appointed to take into consideration the proposed
constitution, and to recommend such additions and alterations
as they should think proper,3
On the 1st of August, 1789, the committee reported the
constitution. It consisted of nine articles, and it was re
solved, — " that the 1st, 2J, 4th, 5th, 6th, 7th and 8th articles
be adopted, and stand in this order, 1, 2, 3, 4, 5, 6 and 7,
and that they be a rule of conduct for this convention; and
that the remaining articles, viz : the 3d and 9th, be postponed
for future consideration."
On the 7th of August, the convention discussed the two
articles which had been postponed, and which, after amend
ment, were agreed to. The constitution was then ordered to
be engrossed for signing. On the 8rh of August, it was read
and signed by the members of the convention. Every dele
gate appears to have subscribed it, except two from Delaware,
and one from Maryland, Both clergy and laity, however, of
these states, were represented by those who did sign.
On the 5th of August, 1789, the following resolves were
unanimously passed: —
" Resolved. That a complete order of Bishops, derived as
1 Bishop Seabury in 1784, Bishops White arid Provoost in 1787.
8 BIOREN'S Ed. Journals, 47, 4$.
96 CONSTITUTION OF THE CHURCH
well under the English as the Scottish line of Episcopacy,
doth now subsist within the United States of America, in the
persons of the Right Rev. William "White, the Right Rev.
Samuel Provoost, and the Right Rev. Samuel Seabury.
" Resolved, That the said three Bishops are fully compe
tent to every proper act and duty of the Episcopal office and
character in these United States, as well in respect to the
consecration of other Bishops, and the ordering of priests and
deacons, as for the government of the Church, according to
such rules, canons and institutions as now are, or hereafter
may be duly made and ordained by the Church."
This convention was adjourned from August, 1789, to the
29th of September ensuing, in order to meet the views of the
churches of Massachussetts, Connecticut, and New Hamp
shire. At that time its labors were resumed. It was re
solved, the better to promote union with the eastern churches,
that the general constitution was open to amendments and
alterations. A committee was chosen to confer with the
eastern churches. That committee reported the assent of the
deputies from those churches to the constitution, except as to
the third article ; and their readiness to unite, provided that
this article was so amended as to authorize the Bishops, when
sitting in a separate house, to originate any measures, and to
negative the acts of the other house. The committee recom
mended the adoption of these suggested changes. The con
vention agreed to them, modifying the veto so that a law
might be passed if adhered to by four-fifths of the House of
Deputies. On the 2d of October, Bishop Seabury, and the
other deputies from Connecticut, Massachusetts, and New
Hampshire, gave their written assent to the constitution as
that day modified ; and the labors and the cares of this con
vention ceased.
Thus was accomplished the great work of the union of
our Churches. Through the ordeal of long investigation, of
AND THE GENERAL CONVENTION. 97
thoughtful and wise councils, of admirable sted fastness in all
matters essential, of laudable concession in all matters subor
dinate, the constitution was established. The fabric of the
government of the Protestant Episcopal Church was founded
upon the Apostolic rock, and built up of the living stones of
the English Church. " Her fortifications, her walls, and her
bastions are constructed of other materials than of stubble and
of straw. They are built of the strong and stable matter of
the Gospel of liberty. She has securities not shaken in any
single battlement, in any single pinnacle." '
The historical notices thus far presented, are important
upon the inquiry, what £re the principles by which the con
stitution and canons are to be expounded — the extent of the
power of the General Convention, and the obligatory force of
its canons.
TITLE II.
In examining the great- question of the power of the
General Convention, it seems useful to conduct the inquiry
under distinct heads.
First, — As to the power of the Convention of 1789 ; and
this, in the first instance,' in relation to the constitution; and
next, in relation to the canons passed by that convention.
Second, — As to the power of every subsequent General
Convention, in regard to the constitution, and in regard to
canons.
I. Upon the powers of the General Convention of 1789,
the starting point of the inquiry may be taken at the resolu
tion of June 24, 1786. No doubt what had passed before is
historically important, and elucidatory of the views and action
of the convention ; but strictly, this resolution will be found
the first material fact bearing upon this question.
a EJOMUNJB BURKE.
98 CONSTITUTION OF THE CHURCH
It was thereby recommended, that "the several state con
ventions authorize their deputies to the next General Con
vention, after we shall have obtained a Bishop or Bishops in
our Church, to confirm or ratify a general constitution re
specting loth the doctrine and discipline of the Protestant
Episcopal Church." (Bioren, 20.) Bishop Seabury had been
consecrated in November 1784, and Bishops White and Pro-
voost were consecrated in Febrnary 1787.
Several of the state conventions acted under this resolu
tion.
In September, 1786, the Convention of New- York resolved,
"that the deputies have discretionary powers with respect to
any matters which may come into debate in the General Con
vention.1
In 1788, the same convention passed a resolution that the
union of the Protestant Episcopal Church in the United States
of America, is of great importance, and much to be desired;
and that the delegates to the pext General Convention be
instructed to promote that union by every prudent measure
consistent with the constitution of the Cburch, and the con
tinuance of the Episcopal succession in the English line.*
On the 19th May, 1787, the Convention of Virginia re
solved that the 1st, 2d, 3d, 5th, 6th, 7th, 8th, 10th and llth
articles of the constitution prepared in 1786, be acceded to;
that the 4th and 9th be also acceded to, but as articles of a
temporary nature, and not as forming a part of the general
constitution. These related to the Book of Common Prayer.
This convention also resolved, "that the recommendation!
of the General Convention, with regard to the powers to be
given to the deputies to the next convention after a Bishop or
Bishops were obtained, ought to be complied with." :
Journals Cwiv. of New-York, 1786.
a Journals Conv. of New-York, 1788.
1 Journals of Virginia Convention, annexed to HAWKS' Contributions.
Dr. Hawks states that he has been unable to discover any proceedings
of a Convention in 17S&.
AND THE GENERAL CONVENTION. 99
In Maryland, at, a session in June 1789, instructions were
given to the deputies for the approaching General Convention,
in relation to the proposed book. The convention ratified and
approved it. It does not appear that there was any formal
instruction given as to the constitution.
The convention of South Carolina had in 1785 authorized
their delegates to act according to their judgment. In April,
1786, deputies were appointed, and also in May, 1789, for
the ensuing July convention. I do not find that any instruc
tions were given at either of these meetings, nor whether the
powers given in 1785 were deemed to remain in force.
In June, 1787, the convention of New Jersey resolved, that
this convention will proceed to the appointment of delegates
to the next General Convention, with powers agreeable to the
recommendation of the General Convention held in Phila
delphia in June, 1786; and such delegates were appointed.
I do not find any notice of the action of Pennsylvania upon
this point, except that in October, 1786, clerical and lay
delegates were elected to represent the diocese, in the next
General Convention.1 In May, 1787, the deputies to the
General Convention reported the acts of that body, and no
resolution appears to have been taken.
The action of Massachusetts and New Hampshire, bearing
upon the point, as far as I have ascertained it, is stated in
the note. It was not decisive as to the authority of the
deputies.
1 Notes on Eccl. History, Church Review, vol. iii.
1 The Convention of Massachusetts, in 1785, resolved that it was
not necessary nor convenient to send deputies to the General Conven
tion of that year. (Journal, 1785.) From the MSS. in the possession of
the Rev. Dr. Jarvis, I am enabled to state some particulars as to the
authority given to the Rev. Mr. Parker. The wardens, vestry, arid
congregation of Trinity Church, Newport, Rhode Island, on the 13th
Sept., 1789, voted unanimously, ''That this congregation will for the
future abide by and maintain such rules and orders, respecting both the
doctrine and discipline of our Church, as have been determined upon.
100 CONSTITUTION OF THE CHURCH
In Connecticut, a convention was held on the 15th of
September, 1789, to take into consideration the invitation of
the convention in Philadelphia. It was decided to send cleri
cal deputies to the meeting to be held on the 29th of that
month. The Rev. Messrs. Hubbard and Jarvis were selected,
and authorized to treat upon the terms of union, but with
this restriction — "That the proceedings in the said treaty
should not be deemed conclusive till they should be considered
and approved by the body of the clergy, their constituents."1
On the 30th July, 1789, the deputies to the General
Convention from the several states were called upon to de
clare their powers relative to the object of the resolution of
the 24th of June, 1786, which is recited in terms. They
gave information that they came fully authorized to ratify a
Book of Common Prayer, &c., for the use of the Church. So
on the 30th July, upon the presentation of the credentials of
the deputies from Delaware, they were requested to state
their powers relative to the ratification of a Book of Common
Prayer, &c., which were produced and deemed sufficient.
(Bioren, p. 4.)
In speaking of this matter, Dr. Hawks observes, " that
the first convention, after obtaining the Episcopate, was held
in July, 1789. At this meeting the delegates declared them-
by the General Convention, held in the city of Philadelphia from the
28th of July to the 8th of August last, or which may be determined
upon by the convention which is to be held by adjournment in the city
of Philadelphia, the 29th of the present month. Voted, that the Rev.
Samuel Parker, D. D., be requested to represent us in the said conven
tion. Witnesses, John Handy. Robt. N. Auchmuty, churchwardens."
The Rev. Dr. Parker was also appointed a deputy to represent
Christ Church, Boston, by a vote of the wardens and vestry, of the 7th
Sept., 1789; and was empowered to represent Trinity Church, Boston,
by a similar vote of the 6th of September, that church declining to
send any lay delegate.
In June, 1789, at the meeting in Salem, he was deputed to repre
sent the clergymen there assembled.
1 MSS. in the hands of Rev. Dr. Jarvis.
AND THE GENERAL CONVENTION. 101
selves authorized by their respective conventions to ratify a
constitution."1 Dr. Wilson takes the same view.2
It may be added that there is nowhere a suggestion, that
the constitution should be submitted to the state conventions.
In many of the original states, however, a formal ratifi
cation took place. In South Carolina, at a convention of
October 19, 1790, the general constitution and canons were
unanimously adopted. (Dalcho.) In New- York, on the 4th
November, 1789, a resolution, also unanimous, was passed,
that the convention do approve and consider the Church in
this state bound by the constitution lately adopted by the
General Convention.
The language admits of the construction, that the Church
was deemed bound without the ratification, and the resolu
tion itself probably arose from the somewhat qualified resolu
tion of November, 1788, before mentioned.
In Maryland, the Journal of the General Convention was
presented in 1790. A committee was appointed by the con
vention upon the subject. That committee reported " that
as far as the proceedings of the General Convention were
warranted by the instructions given to the Maryland dele
gates, they are binding in Maryland. That the Prayer Book
is obligatory and ought to be observed. That there was
nothing in the constitution repugnant to the fundamental
articles which had been adopted in Maryland." The consti
tution was approved of in the convention, with one exception.
That related to the 8th article, as to which it was declared,
that as by it a power would be vested in a future General
Convention, to establish such alterations in our articles of
religion as they might think proper, without requiring the
consent of the conventions in the several states, they regarded
it as exceptionable, unless a proviso should be added that no
1 Constitution and Canons, pp. 11, 12.
1 Life of Bishop White, p. 135.
102 CONSTITUTION OF THE CHURCH
such alterations should be obligatory unless the mode pre
scribed by the 9th article was pursued. There is no trace of
any action either in the ensuing Gfeneral Convention or in
Maryland, resulting from this exception. On the contrary all
the subsequent proceedings prove that the constitution was
considered to be in full force. The act can only be looked
upon as the expression of an opinion.
No vote of ratification took place in Virginia.1
In Ntw Jersey the convention of 1790 unanimously re
solved that the convention and Church of the state were bound
by the proceedings.
It appears that in Connecticut, the constitution was ap
proved by the convocation of the diocese, in October, 1790 ;
but was not adopted by the several parishes so as to form a
convention under it until 1792.Q
It will be remembered that in September, 1789, Bishop
Seabury and two clergymen, deputies of the Church in Con
necticut, attended the Convention and ultimately signed the
constitution. It is stated in the Journal, that the Rev. Dr.
1 The convention in that state terminated on the 8th of May, 1789.
I have carefully examined the Journal of 1790, and find no trace of a'
vote of adoption. On the 1st May of that year, the Journal of the
General Convention was read and laid on the table.
8 Prefatory note to the Journals of Connecticut. Among the MSS-
in the possession of the Rev. Dr. JARVJS. are the minutes of numerous
conventions and convocations prior to the date of the first convention
in the published Journal. From this it appears that on the 1st of
October, 1790, a convocation was held, and the question was put
whether we confirm the doings of our proctors in the General Conven
tion at Philadelphia, on the 2d of October, 1789, which passed in the
affirmative by the vote of every member present except one. (15 to 1.)
On the 15th of February, 1792, it was resolved that unless the
wardens and vestrymen of church should transmit to the Bishop
within fourteen days after Easter-Monday next, a notification that the
congregation of such church have adopted the Constitution of the Pro
testant Episcopal Church as settled by the General Convention of 1789,
they (the congregation) will ba considered as having totally separated
themselves from the Church of Connecticut.
AND THE GENERAL CONVENTION. 103
Samuel Parker attended as deputy from the churches in Mas
sachusetts and New Hampshire. On the 2d October, 1789,
Dr. Parker agreed to the Constitution, as such deputy, and
signed it on the third of that month.
In 1790, a constitution for the Church in the common
wealth was submitted to the Convention of Massa
chusetts, and unanimously approved. It was directed to be
submitted to the various churches in that state, in Rhode-
Island, and in New Hampshire, with a recommendation that
lay deputies be appointed who should, with the consent of the
clergy, establish a constitution for the future government of
the said churches. In January, 1791, the Convention of Massa
chusetts ratified that constitution unanimously, and on the
same -day a resolution passed, recommending the several con
gregations to instruct their deputies to the next convention, on
the subject of adopting the constitution and form of prayer, set
forth by the Greneral Convention holden at Philadelphia, in Oc
tober, 1789. The convention again met in May, 1791, when the
following action took place : "The convention took into con
sideration the general constitution agreed on in Philadelphia
in October, 1789, which was read and considered by para
graphs, and after some debate the question was put, l shall
the said constitution be adopted.' The result was a vote in
the affirmative of 4 to 2 of the clergy, and 5 to 2 individually
of the laity ; or three churches to one."
I find no other action to have taken place in Pennsylvania,
except that at the convention held in June, 1790, the Consti
tution of the Protestant Episcopal Church in the United
States was read, and notice was given that it was proposed
to consider and determine whether the House of Bishops should
be invested with a full negative on the proceedings of the
other House.
From the foregoing statement of facts it may fairly be
deduced that the deputies to the General Convention of 1789
104 CONSTITUTION OF THE CHURCH
regarded themselves and were treated by their associates, as
vested with full power to form a constitution for the Church ;
that this authority was afterwards generally recognized; and
it then results that the constitution derived its power and be
came the controlling law from the assent of the deputies in
the convention of 1789. The ratifications which took place
in any of the states were not essential to its validity, however
useful as recognitions and confirmations of the authorities of
the delegates. Yet the conclusion need not be pressed further
than this, that the constitution was binding on the original
states, unless there was an act of disavowal and rejection. By
the original states I mean New- York, New Jersey, Penn
sylvania, Delaware, Maryland, Virginia and South Carolina.
It was rightfully within their power to judge whether their
instructions had been adhered to, and to ratify or reject ac
cordingly. It was within their power to have refused their
consent at all. But when they did not assert a deviation
from authority by their delegates, nor simply refuse an absent,
their silence and acquiescence bound them, and bound them
because of the powers they had bestowed upon their agents.
But as to Connecticut, the powers of the delegates having
been expressly restricted, so that a confirmation was necessary,
the constitution only became obligatory upon the ratification
by the convocation in 1790, and the approval of the parishes
prior to June 1792. So as to Massachusetts, it can scarcely
be said that the Rev. Dr. Parker, appointed by the clergy who
met at Salem, as their representative, was the representative
of the whole church of that, state. No instructions had been
given — ao competent power delegated ; and it follows that
Massachusetts came into the union by virtua of the act of its
convention of 1791, in like manner as any other diocese has
subsequently come in, adopting the general constitution by a
positive act.
II. But next, what was the power of the convention of
AND THE GENERAL CONVENTION. 105
1789, as to the enactment of canons? Upon, this question,
one fact has struck me as of marked importance. The con
vention of 1789 passed, on the 7th August, a series of canons,
and, in point of time, passed them before the constitution
itself was finally adopted. It is true that all the articles but
two had been ratified on the first of August, and declared to
be the rule of conduct of the convention ; yet it is impossible,
even in this view, to hold that the canons were passed under
the constitution, because there is not a clause in that instru
ment which, as to the greater part of them, can be appealed
to as the source of the power to enact them. This point will
be more fully entered into hereafter.
On the 31st July, 1789, a committee was appointed to
report a body of canons. On the 5th August, that committee
reported. The canons submitted were discussed on that and
two subsequent days, and on the 7th August were engrossed
and adopted, and ordered to be signed by the president and
secretary. It was subsequently, though on the same day,
that the 3d and 9th articles of the constitution were adopted,
and the whole ordered to be engrossed. On the 8th it was
read, and signed. A committee was also appointed to prepare
and report other canons to the next convention.
The canons passed in 1789, correspond substantially with
the 1st, 3d, 25th, 8th, 19th, 15th and 20th of those of 1832,
the 5th of 1838, and the 9th of 1844.
And these canons were received in the separate conven
tions, and treated as being of equal authority wiUi the consti
tution.
In Virginia, on the 7th May, 1799, a resolution was passed
which recognised the binding force of the 7th general canon ;
and on the 8th May another resolution was adopted, instruct
ing the deputies to attempt its amendment.1 The constitution
1 Contributions, #c., of DR. HAWKS, vol. i. pp. 30 and 31 of the Journals.
106 CONSTITUTION OF THE CHURCH
and canons were directed to be printed with those of the
diocese, and annexed to the journal.
The Convention of New-York, in November 1799, declared
certain rules which had been before adopted, to be superseded
by the canons of the General Convention ; and at a subse
quent meeting, it was referred to a committee to ascertain
what part of the prior regulations required to be abolished or
modified, by reason of such constitution and canons.1
In February 1807, a committee was appointed by the
Convention of South Carolina, to inquire and ascertain whe
ther the constitution and canons of the Protestant Episcopal
Church of the United States had been adopted by the Church
in South Carolina. The committee recited the resolution of
1790, adopting the constitution which has been before noticed,
and reported in the affirmative. The convention divided the
subject into two parts: first, as to the constitution and the
canons of 1789 ; next, as to the canons subsequently passed.
The first were unanimously declared to be in force; as to the
last, some discussion arose, during which a resolution was
offered, declaring such of the subsequent canons to be binding,
as were not repugnant to the constitution.
The matter terminated by instructing the delegates to
the General Convention to move for a repeal of the 2d and
9th canon of 1804, which were obnoxious to the churches of
the state. These related to inductions and the dismissal of
ministers, and were afterwards modified.2
A convention of New Jersey met in June, 1790. The
deputies to the General Convention reported, " That agreea
bly to the powers committed to them, they had concurred
in forming and establishing a constitution for the Protestant
Episcopal Church in these states, certain canons for the gov
ernment of such Church, and also a Book of Common Prayer,
1 Journal New-York, p. 38.
tt DALCHO'S History.
AND THE GENERAL CONVENTION. 107
and administration of the Sacraments, &c." It was resolved,
unanimously, that the convention and Church of this state
are bound by said proceedings.
The committee to which, as before mentioned, the Journal
of the General Convention was referred in Maryland, in
1790, also reported, " That upon an extensive examination of
the canons framed by the said General Convention for the
regulation of the whole Church, the committee are also of
opinion that the same are entirely consistent with the said
fundamental articles and doctrine, and that therefore they
ought to be confirmed by this convention, and received as
general canons for the government of the Church within this
state.
That in order to adapt the canons of the Church within
this state, to the constitution and canons framed by the Gene
ral Convention for the government of the Church within the
United States, the committee are of opinion that a select
number of this convention be appointed to prepare and report
a draft for their consideration, and to include therein such
ruies and canons as may be deemed necessary for the com
plete government of the Church within this state, the same
not being inconsistent with the constitution or canons estab
lished by the General Convention."
This report was adopted.
The earliest notice I find of the canons in Massachusetts
is in 1709, when a resolution passed that the constitution of
the Church be printed, and added to the constitution and
canons of the General Convention, if such be printed.
In 1802, a canon was adopted by which it was provided
that disorderly and unusual conduct — neglect of duly, disre
gard to the constitution or canons of the General or State
Convention, &c., were oflences for which a clergyman ought
to be censured.
The ratification of the Convocation of Connecticut, be-
103 CONSTITUTION OF THE CHTJRCH
fore stated, extended to all the acts of the delegates, and
therefore comprised the canons. At the convention of 1790 in
Pennsylvania, the constitution, as before observed, was
read ; but there was no distinct action in relation to the
canons. In 1793, however, certain of the regulations of that
Diocese were expunged, as being superseded by the canons of
the General Convention.
Upon this question of the force of the canons of the General
Convention of 1789, and the power of that body to pass them,
there are two theories. One is, that the convention had as
ample power to pass these canons, as it had to adopt a con
stitution ; the other, that the authority was assumed, and the
canons became the law in the several states only when ac
tually ratified, or from long acquiescence and submission. ',
It must again be noticed, that most of these canons arc
not to be supported upon any clause of the constitution — were
framed irrespective of it — and were actually passed before the
constitution was adopted.
Let us consider the consequences of the doctrine that the
canons became the law only by ratification or acquiescence.
By the one or the other, they became the settled law of the
whole Church of the United States. What power, then, had
any subsequent General Convention to repeal or modify them ?
"Was not any act of repeal or modification in itself invalid,
only capable of receiving validity from express sanction, or
long submission?
And in the absence of express sanction to the repeal, what
length of time would have amounted to proof of acquiescence,
so as to render the repeal binding ? If an express sanction to
any set of canons had been given by a diocese, would it
amount to a permission, or a compact ? If the former, it was
at any moment revocable. "Would the revocation of an assent
to the repeal have reinstated the repealed canons ?
AND THE GENERAL CONVENTION. 109
Again, — The original canons were, by a compact of the
whole Church, (at least in the ten states,) the general law.
If the General Convention could not repeal them, neither
could any number of dioceses short of the whole, or short of a
majority. Was the repeal in abeyance, until all or a majority
had acted, or until such a period had elapsed as warranted
the presumption of the assent of all?
Once, more, — If the canons of 1789 depended for their
obligatory power upon recognition positive or implied, then
clearly in the latter case, and probably in the former, every
diocese could supersede them, and establish a different law of
its own upon the very subject matter of those canons.
From such difficulties, contradictions, and discordancies,
what refuge have we except in that other and more compre
hensive theory of the power of the General Convention of
1789? It may thus be stated. That convention, under the
powers given to its delegates, strengthened by the ratifications
of the dioceses, (e^en if strictly needless,) was constituted and
approved as a body of supreme absolute power, to establish an
ecclesiastical government for the whole Church of the United
States. It seems useless to advert to the few limitations
upon this power. Now it appears to me a clear proposition,
that the authority to frame a whole code for the government
of the Church could have been lawfully carried into effect,
both by a constitution concentrating fundamental principles
and perpetuating an organization, arid by canons adapted to
meet the various cases and details of government. The con
vention was equally competent for both. It could, by the
very letter of its commission, have inserted in a constitution
all regulations "respecting both the doctrine and discipline of
the Church;" and if it could do this, it could embody such
of them as it thought proper in a code of canons.
The question, then, before the convention of 1.789, was
one of selection and division ; viz. : what points of govern-
8
110; CONSTITUTION OF THE CHURCH
merit should be inserted in a constitution, (only to render them
more stable, and the difficulty of altering or reversing them
greater,) and what should remain in the shape of laws alter
able at any meeting.
SECTION 8.
Assuming the soundness of this theory, we establish the
binding force of the canons of 1789, but are yet to ascertain
what is the power of subsequent General Conventions in rela
tion to the laws of the Church — whence they have derived
their power, and what is its extent ? This wa« the second
subject of examination.
The answer is plain. The development of the foregoing
propositions inevitably leads to the conclusion that the power
of the Convention of 1789 involved the power of rendering
the system of government stable and enduring. Its office was
not to establish a fugitive coalition, but a perpetual union.
It possessed therefore the right of instituting and providing
for the continuance of a body, with similar jurisdiction to its
own ; a body in which should reside all authority necessary
for the purposes, and commensurate with the object of the
Church ; a body essentially of superior ultimate jurisdiction.
Such a body was established when it was declared "that
there should be a General Convention of the Protestant Epis
copal Church of the United States." Provision was made for
its renovation and perpetuity ; the elements of its organization
were prescribed, and certain self-imposed restrictions were
proclaimed.
There is another and a higher view of the question. From
the foundation of Christianity, there never has been a Church
without a body in which resided the ultimate and absolute
power of government. In its earliest age, even two apostles
would not assume the office of deciding the question raised
at Antioch as to the circumcision of the Gentiles, but referred
AND THE GENERAL CONVENTION. HI
it to the judgment of the Council at Jerusalem. Passing by
the great representation of the Church universal in the four
first Councils, what national or provincial Church has ever
been known without such a predominant body ? It is anoma
lous and contradictory to speak of such a Church without it.
When then, in 1789, the whole Church of the United States,
through its competent representatives, declared, "there shall be
a General Convention of the Protestant Episcopal Church in
the United States," it enunciated the great principle that this
was a national Church, and that such a Convention was to be
its highest Council. The mere act of establishing this Council
involved and attached to it every power inherent in such a
body, and not expressly refused to it. Such powers are to be
ascertained from the laws and practice of the apostles, the
voice of ancient witnesses, the uninterrupted descent from age
to age, from council to council, of known, and exercised, and
unquestioned sway.
On the very day that the constitution went into effect the
Church in the United States had all the essential elements of
a national Church. It had its Bishops. It had three Bishops
within its limits, competent to transmit the succession and
sufficient to compose a Synod.1 The earnest objections of the
clergy of Connecticut strongly set forth in the letter of the
Rev. Mr. Jar vis of 1783, and urged with such power in the
address of the Convention of New Jersey in 1786, had been
removed.2 All the elements of a primitive apostolic Church
in its perfection had been acquired. Imperfection existed in
an undue conventional restriction of the power of the Bishops,
1 On the 5th August, 1789, a resolution was unanimously adopted,
that a complete order of Bishops, derived as well under the English as
the Scottish line of Episcopacy, doth now subsist within the United
States of America, in the persons of the Rt. Rev. William White, the
Rt. Rev. Samuel Provoost, and the Rt. Rev. Samuel Seabury. — (Journals
of the Gen. Conv. p. 53.)
2 Memoirs of the Church, 332. Ibid. 357.
112 CONSTITUTION OF THE CHURCH
and in oiher details; but the seeds of truth and primitive
order were there, and gradually ripened, expanded, and pre
vailed.
In this situation, on the 2d October, 1789, the constitution
was adopted. On the 3d of that month it- was resolved that
agreeably to the constitution, there is now in the convention
a separate House of Bishops, and the Bishops then withdrew.
On the 5th October, the House of Bishops met, and it was
provided that the senior Bishop should be the president.
What then prevents the conclusion, that thus was insti
tuted the superior council of the Church of the United States?
Not because there was no prelate answering to the Arch
bishop, or Metropolitan, found in provincial councils. In
relation to such assemblies, he was no more than the sum
moning and presiding officer. The Bishops in council could
overrule him, and he could not dissolve a meeting without
their consent. Not because the inferior clergy formed a part
of the council, with an equal voice in the enactment of laws.
There are traces of their presence in almost every period,
whatever may have been the extent of their power. But in
England, especially since these bodies assumed the form of
convocations, they have had a co-ordinate, authority in this
particular. In the province of Canterbury, also, they delib
erated in a separate chamber. Nor ai>ain can it be, because
the laity were admitted as members with a concurrent
power in the making of canons.
Without entering into that discussion which the work of
Sir Peter King produced, I content myself with the highest
authority on one side of the question known to the American
Church — that of Bishop Seabury. The main point of his ob
jections to the introduction of the laity, contained in his cele
brated letter of 1785, was their power to sit upon the trial of
Bishops and Presbyters. But he united in a constitution
which gave them co-equal authority in the formation of laws
AND THE GENERAL CONVENTION 113
for the general Church, and he consented to their introduc
tion into the Convention of Connecticut. This is suffi ;ient to
prove, that in the judgment of that eminent prelate, the
presence and power of the laity in councils was no violation
of the principles of a primitive Church, if not literally in ac
cordance with primitive practice.1
We must distinguish between the convention of 1789,
and the General Convention established by it. The former
was an imperfect body, constituted to legislate for an imperfect
Church ; but with power, when there were Bishops of the
Church, to institute an organ for continuing and administer
ing its government. The Bishops, two of them by their
actual presence and participation, and the other by his then
implied and subsequent express ratification, united in the for
mation of that body. These Bishops submitted to certain
modifications of the model of a national or provincial council.
In their judgment these changes were compatible with the
apostolic constitution of the Church ; and when the conven
tion of 1792 assembled, it met as the pre-eminent synod, as
the Protestant Episcopal Church of the United States by
representation. And amongst its acts, at that meeting, was
the republication, or re-enactment, of the canons of 1789.
(Journals, 1792, BIOREN.)
The remarks on this most important subject have been
much extended — a few observations will conclude them. In
1786, a constitution was first announced, and the deputies
say, that " taking into consideration the importance of main
taining uniformity in doctrine, discipline and worship in the
said Church," they do declare and determine, " that there
shall be a General Convention of the Protestant Episcopal
Church in the United States." Such was the article as
1 1 refer to a note to the Articles of the Constitution (post. Title 2)
for authorities as to the composition of these councils, and in support of
t he above position.
1H CONSTITUTION OF THE CHURCH
adopted in 1789, and thus has it continued since. Now,
what could possibly achieve the object of maintaining uni
formity in discipline and worship, but this principle of ulti
mate authority in some constitutional body ? What else
could fulfil the primitive law of unity and perfection in a
national Church — what else could have met the difficulties
and exigencies of those days? Nothing saved us then,
nothing but this can save us now, from being the dissevered
members of separate congregations, and not the compact body
of a national Church. I know there are some who look upon
this union with distrust, and others with indifference ; but
the holiest and wisest of our fathers toiled for and prayed
for it day and night — sorrowed as the cause was in tribula
tion, and rejoiced with joy unspeakable when it prospered. I
believe that in spite of much that has been wrong, and more
that has been imperfect, the prophetic visions of spiritual
growth and beauty which arose upon their faith-brightened
eyes, have been realized in the history of the Church, and
realized through union.
Thus we have a theory of the power of the G-eneral Con
vention, adequate, consistent, and practical. There is neither
safety, union, nor progress in any other; but there is every
element of discord, and every omen of decay. I humbly trust
that it will be found as well fortified by facts and argument,
as it is simple and decisive.
And as to those dioceses which have subsequently come
into union, the provisions of the fifth article of the constitu
tion coupled with (though not receiving their force from) the
declarative recognitions in the constitutions of such dioceses,
give to the General Convention the same full authority and
legislative power.1
'The following is the form, with slight verbal changes, in the
constitution of North Carolina, Georgia, Mississippi, Louisiana and
Ohio : — " The Protestant Episcopal Church in this state, adopts, ac-
AND THE GENERAL CONVENTION. H5
It has been before observed, that the great bulk of the
canons cannot be supported upon the ground that the power
to pass them is derived from any clause of the constitution.
This point requires further consideration.
Looking to the source of the power of the delegates, by
whom the constitution and canons were formed, we might be
led to the supposition that the analogies of the Constitution of
the United States would prevail ; and that the question upon
any law of the convention would be, whether the power to
make it had been expressly granted, or by a necessary impli
cation was vested in it uniar some clause of the constitution.
But this rule of construction will be found inapplicable.
It is impossible to find in that instrument, either in express
language, or by any warrantable inference, any provisions on
which to rest the validity of the greater part of the canons.
Every power rightfully exercised by the Government of the
United States in any of its branches, has its source and its
bounds in some clause of the Constitution of the United States;
but it would be vain to seek for such a sanction for most of
our canons.
For example : — the present 37th canon defines the offences
for which a minister may be tried and punished. By other
canons, cartain offences or neglects are punishable or censu
rable. There is not a sentence in the constitution upon which
these provisions can be placed as their authority and warrant.
cedes to, anil recognizes the general constitution of the Protestant
Episcopal Church of the United States. an;l acknowledges its authority
accordingly." In the constitution of Missouri, it is thus: — "This
Church acknowledges the authority of the General Convention of the
Protestant Episcopal Church in the United States of America." Of
Wisconsin : — :: The Church iu the diocese of Wisconsin, desirous of en
tering into federal union with the Protestant Episcopal Church in the
United States of America, does accordingly accede to, recognise and
adopt the general constitution and canons of that Church, ani acknow-
le.lgss its authority accordingly." There is a similar clause in the
constitution of South Carolina. There is none in that of Maine, New-
York, Western New- York, or Maryland.
116 CONSTITUTION OF THE CHURCH
"We may classify the articles of the constitution thus:
First, such as relate to the establishment and organization
of a General Convention — its mode of performing business, and
the alteration of the constitution. The first, second, third, fifth
and ninth articles fall within this class.
Second. Such as confer upon the convention a power to
legislate.
Third. Such as are in themselves positive acts of legisla
tion.
Nothing falls under the second class but the first two
sentences of the sixth article as to trying Bishops, and that
part of the eighth article which contemplates a future action
as to the Prayer Book. The fifth canon falls, in part, within
the first, and partly within the second class. All other pro
visions are within the third.
We have here a very limited foundation for the legislation
of the convention over the whole Church. In truth upon the
doctrine of deriving authority from the constitution, there
would be no power in it, except to regulate its own organiza
tion, to govern all changes in the Prayer Book, and to direct
the trial of Bishops.
And from the view we have now taken, two classes of
powers exist in this body — those conferred by the constitution
and those possessed without being so conferred. I have before
stated what fall under the first head.
And as to the other powers, they vest in the General Con
vention by reason of its inherent sovereignty, and from their
very nature cannot receive a strict definition or circumscrip
tion.
From this doctrine, some general rules necessarily flow,
1st. That, generally speaking in instances of the first
class, viz : those in which a power to legislate is expressly
given, all authority of the separate dioceses upon the subject
is superseded at once, and before and without any exercise of
the power by the General Convention.
AND THE GENERAL CONVENTION. 117
2d. That until an act of legislation upon any such subject
as the convention can act upon within the second duss of
powers, the authority of the dioceses is entire and unrestricted.
3d. That when an act of the General Convention upon
such a matter is passed, it becomes the supreme law ; super
seding what has been done in a diocese or any power of a
diocese at variance with it, and superseding the right to make
any similar provision in a diocese ad idem ; but abridging the
power of the dioceses only so far as the law by just intend-
inent extends.
4th. That therefore the dioceses still retain the power to
legislate upon the same subject matter beyond the legislation
of the convention, if no repugnance exists between the dif
ferent acts of legislation.
I proceed to some illustrations of the above principles.
1st. A part of the sixth article, as before observed, confers
a power upon the General Convention to legislate. The pro
vision is this: — "The mode of trying Bishops shall be pro
vided by the General Convention. The court appointed for
that purpose shall be composed of Bishops only."
This clause was adopted in 1841. From the moment of
its passage, I apprehend, the. whole power of the diocese over
the subject was annulled. The power thus conferred was ex
clusive in its very nature, and did not require that it should
be exercised to produce an inhibition upon the dioceses.
It is true the General Convention passed a canon at the
same session in which this part of the constitution went into
effect ; but had they deferred it, still the dioceses could not
have legislated in the matter; and clearly there could be no
concurrent legislation after the convention did act. The his
tory of this article will, I think, render this more clear, and
be instructive upon the subject at large. (See post. Article 6.)
2d. The eighth article furnishes an exemplification of the
principles now suggested of another kind. It directs that a
118 CONSTITUTION OF THE CHURCH
Book of Common Prayer, &c., when established by this or a
future General Convention, shall be used in the Protestant
Episcopal Church in those states which shall have adopted
this constitution.
The Book of Common Prayer was ratified and established
by a resolution of the Convention, dated the 16th day of Oc
tober, 1789, but it was provided that it should go into effect
on the first day of October, 1790. Now, unquestionably,
during this interim, as well as during any period until the
convention acted, the Church in the several states had the
same control over the Prayer Book to amend and establish it
for each state, as the Greneral Convention acquired for the
whole Church.
The ninth article of the constitution of 1.785 indeed left the
whole matter to them. But after the 1st of October, 1790,
this eighth article became permanent and perfectly exclusive.
There did not remain the slightest power over the subject in
any Diocesan Convention.
Thus we find that, in 1787, a resolution was adopted in
New- York, that until further provision be made by the Gren
eral Convention, the respective congregations of this Church
be at liberty to use the new form of prayer or the, old, as they
respectively may think proper. (Journals N. Y., p. 17.)
3. An illustration of the fourth proposition may be found
in an act of the convention of Maryland, of 1847. A com
mittee appointed for that purpose, reported a set of canons,
marked with great ability and care. Among them was one
(the fifth) declaring what offences of clergymen are punish
able. This canon enumerated the offences declared in the
37th canon of the Greneral Convention, and added other dis
tinct offences taken from a former canon of Maryland respect
ing the laity. The committee say, " The language of our
present 22tl canon has the appearance of great vagueness. It
has, therefore, been thought expedient to substitute for it an
AND THE GENERAL CONVENTION. 119
enumeration of offences, taken partly from the 37th canon of
the General Convention of 1832, and partly from the 17th
canon of the old Maryland code, which defines the offences for
which a layman is liable to trial." A minority report, signed
by Mr. Carroll, and drawn up with great ability and admira
ble perspicuity, treated the proposed canon as unconstitutional.
It would be extremely difficult for any one to refute the
premises of this report; but the conclusion does not seem
warranted.
The journal does not furnish the reasons by which the
report of the committee was sustained. From the character
of the gentlemen of that committee, they, no doubt, were far
more full and convincing than those I proceed to suggest.
If the principles which I have supposed to exist are sound,
they answer the argument of Mr. Carroll. There was no such
exclusive power upon the subject vested in the General Con
vention as precluded a diocese from acting before the General
Convention did act. But there was a power in that convention
to act, and when they did so, their rule became absolute and
paramount; yet absolute and paramount to the extent to
which it went, and no further. That convention pronounced
certain offences punishable. No diocese could reverse or mo
dify that law. But it did not pronounce that such enume
rated offences were the only offences punishable. This allowed
the diocese to enlarge the number within its own limits, if it
was thought proper. The 3d canon of the diocese of Con
necticut must be illegal, if this of Maryland is so. It contains
an enumeration of triable offences, some of which are not in
cluded in the general canon.
Such I consider to be the power of the General Convention,
and the remnant of authority left to the dioceses. But there
are some restrictions upon this power, which arises from its
nature and the object of its establishment.
The following may, I think, be laid down as free from
difficulty.
120 CONSTITUTION OF THE CHURCH
1st. The General Convention cannot pass a canon con
flicting with the general constitution.
2d. It cannot adopt any canon for discipline of a limited
and local operation. It must be for the whole Church, and
uniform throughout the Church.
But is there not also some limit to its power in the con
stitutions and regulations of the churches of the dioceses —
some subjects of internal government which it may not touch?
The question is one of great moment and nicety. I proceed
to state some facts and to make some suggestions upon the
subject.
It would, on first consideration, appear indisputable, that
the regulation of a diocesan convention, and the qualifications
of its members, were exclusively within its own control. We
might, in like manner, suppose that the bodies through which
its internal government was to be carried on, would be con
stituted solely by the separate conventions, and in such man
ner as they thought fit. Yet, as to the latter, there has been,
since 1789, a canon unquestioned and submitted to, directing
that there shall be a standing committee appointed in every
diocese; since 1808, another, declaring the duties of such
committee; and since 1832, another, providing that these
duties, except as provided for in the canons of the General
Convention, may be prescribed by the canons of the respect
ive dioceses.
"With regard to the other point, there are historical facts
and actions of conventions, of great importance and interest.
In the year 1804, the General Convention passed a canon
declaring that no minister who may be hereafter elected into
any parish or church shall be considered a regularly ad
mitted and settled parochial minister in any diocese or state,
nor shall as such have any vote in the choice of a bishop,
until he shall have been inducted according to the office pre
scribed by this Church.
AND THE GENERAL CONVENTION. 121
At the same time the Office of Induction was adopted.
Bishop White states (Memoirs, p. 255,) " that the requir
ing induction as essential to a valid settlement, was perceived
to militate against the idea so generally prevalent in many
places of dismissing ministers at pleasure. In Maryland the
measure interfered directly with the vestry law. From
Carolina there was a memorial desiring an alteration of the
canon."
The vestry act of Maryland was passed in 179S, and gave
to the vestry the power of electing a minister, and making
a contract with him for his services. It vested him with the
right to the glebe, rents, and other property of the parish,
unless he otherwise contracted with the parish.
This act, it must be remembered, had been accepted and
acted upon by the Church in that state. Dr. Hawks states
other objections made to the canons.1
I have before noticed the action of South Carolina upon
this subject. The opposition led to the modification in 1808,
declaring that the canons, (this and the 2d canon of 1804,)
should not be obligatory upon those states or dioceses with
whose usages, laws or charters, they interfered. The phrase
induction was also changed to institution.2
The canon of 1804 presented two points for consideration :
1st, the necessity of induction, to render a minister's settle
ment in a parish valid for any purpose : 2d, its necessity to
render the minister capable of voting for a Bishop, or being a
1 Vol. 2, p. 263. These objections spring from old habits, traces of
which are to be found at a very early period. In Virginia, under an
act of 1682, presentation was to be made by the vestry, and induction
by the governor : without the latter the clergyman had no freehold in
the living, but was removable at pleasure. Hence there were few of
the clt-rgy who could prevail on their vestries to present them for in
duction ; the general custom, therefore, was to hire the minister from
year to year. Hawks' Contributions, vol. 1, p. 88.
3 Dr. HiAvks considers that tha terms were synonymous as used by
the convention in 1804 and 1808.
122 CONSTITUTION OF THE CHURCH
member of the General Convention, or even of a diocesan con
vention.
My business at present is with the latter effect and bearing
of the canon.1
And the action of New-York is here very important.
In 1802, the convention of that diocese unanimously
adopted an office of induction into the rectorship of a parish,
and also a canon prescribing the use of the said office at the
settlement of every rector. It ran thus : " No minister shall
be considered as regularly inducted or settled hereafter as the
rector of any parish, except he has been inducted according to
the Office of Induction prescribed by this convention."3
On the 8th of October, 1806, a resolution was moved and
seconded, " That the General Convention of the Protestant
Episcopal Church in the United States have no authority to
prescribe the qualifications necessary to entitle a person to a
seat and vote in this convention. Resolved, that by the con
stitution of the Church in this state, every officiating minister,
regularly admitted and settled in some church within this
state which is in union with this convention, has a right to
sit and vote in this convention. Resolved, that the Rev. Mr.
S. having been called and inducted as rector of the church of
, in the manner prescribed by the laws of the state,
he is regularly admitted and settled in the said church, and
it being within this state, and in union with this convention,
the said Mr. S. is entitled to sit and vote in tthis convention."
1 With regard to* the former question, the difficulty" seems to have
been that the institution tended to confer rights, and extend the period
of a ministers connection with the parish, beyond what was agreed
upon by the terms of the call.
As the office originally stood, there may have been ground for this
comment, but only from the form of the letter of institution, not in the
office itself, to which the wardens representing the parish, were
parties.
a Journals N. Y. Convention, pp. 116-119.
AND THE GENERAL CONVENTION. 123
It was moved and seconded that the foregoing resolutions
be postponed for the purpose of introducing the following : —
"Resolved, that the ecclesiastical authority possesses the
inherent and independent right to determine the qualifications
of the members of its several judicatories, or ecclesiastical
bodies; and that the Rev. Mr. S., not possessing the qualifica
tions required by the authority of the Church, would not be
entitled to a seat in the convention.
" Resolved, that agreeably to the constitution and canons
of this Church, it being necessary that every presbyter should
be inducted, according to the office of induction, before he can
be considered as a regularly admitted and settled clergyman,
a presbyter not so inducted cannot be entitled to a seat in this
convention ; the Office of Induction, prescribed by the General
Convention of the Church, being the ecclesiastical recognition
of his rectorship — but in no respects interfering with civil con
tracts — with the rights of vestries to settle duly qualified
clergymen on whatever terms they may deem proper, or with
the temporalities of parishes ; which temporalities must be
vested in the rector, by the vestries, before the bishop can give
him authority to claim or enjoy them."
These resolutions, as I am informed by Bishop Onderdonk,
were generally understood to have been drawn by Bishop Ho-
bart. No one can refrain from admiring the remarkable pre
cision and legal accuracy of the language.
The question of postponement, for the purpose aforesaid,
being taken, was decided in the affirmative, with only a few
dissenting voices. And the question being taken on the last
named resolutions severally, they were adopted with the same
result.
In 1820 the following preamble and resolution were
passed :
" It having been the usage of this diocese, previous to the
passage of the 29th canon of the General Convention of 1808,
124 CONSTITUTION OF THE CHURCH
to consider as regularly admitted and settled parochial min
isters in the sense of the third article of the constitution of this
Church, all clergymen entrusted with the cure of parishes
within the same — Therefore, Resolved, that, all such, al
though not instituted agreeably to the office prescribed in the
said 29th canon, shall hereafter be considered members of
this convention." Under this resolution a number of clergy
men took their seats as members.
This resolution, at first, appears strange after the action
of the diocese in 1802, respecting induction, and that of 1806.
A close examination, however, will show some plausible dis
tinctions on which inconsistency m:iy be avoided. At any
rate, the vote of New- York has given its testimony to two
propositions — -first, that the Gre-neral Convention had the un
questioned power to prescribe institution as a qualification of
members of a diocesan convention, or to entitle them to vote
for a Bishop : and that, the general canon of 1804 superseded
the similar canon of the diocese, passed in 1802. Next, that
the canon did not, and could not interfere with any state law,
which regulated the right to the temporalities of a church or
parish, and defined what slum Id be a settlement for that pur
pose. Now, at that time, the constitution of the diocese of
New- York directed, that the convention should be composed
of the officiating ministers, being regularly admitted and set
tled in some church within the state, which was in union with
the convention. (Article 3, Cons. 1796.) By the act of the
legislature, then and now in force, the wardens and vestrymen
constituted under the act, were to call and induct a minister.
And upon an application to the convention, the new church
having been duly organized under the statutes, and nothing
objectionable appearing, was admitted into the convention.1
1 The first instance I find recorded, (but it is clear there were others
before.) is in 1796. (Journal of that year.) Two instances of the re
jection of such an application are to be found previously, one in 1793,
another in 1794.
AND THE GENERAL CONVENTION. 125
And this, as I understand the case, was precisely the po
sition of Maryland, under the vestry act and the constitution
of that Church ; arid of South Carolina, under the statute and
constitution in force in 1807, when the proceedings before
stated took place. This, I believe, is their position now.
It is this matter which the modification of the canon
in 1808 meets. The institution shall not be necessary where
it interferes with the laws or usages of a Church in a particular
diocese. The constitutions of Maryland, New- York, and South
Carolina, prescribe the qualifications of clerical members of a
convention. They admit those legally settled in a parish,
under a law of the legislature. They do not by law or usage
require institution ; and the General Convention dispenses in
such case, with the requisition.
But all this does not touch or impeach the power of the
General Convention to have passed, or now to pass, the canon
of 1804; or now to abrogate the qualification of 1808. I
have added in the note some particulars which will tend to
assist the judgment upon this point.1 All that is now con-
1 In Connecticut, an office of induction was directed to be prepared
by the convention of 1799. In June, 1804, the office, as agreed upon
by the bishop and clergy in convocation, was adopted. On the same
day it was resolved, that no clergyman who shall hereafter be settled
in this diocese shall be entitled to a seat in the state convention, until
he produce a certificate of the Bishop, that he has been regularly in
ducted into some parish, agreeable to the office of induction adopted
by this convention. This was before the session of the General Con
vention, when the canon of 1804 was passed." That session was in
September of that year. I do not find any further action upon this sub
ject until 1826, when a canon, (the 14th5) was reported, requiring all
clergymen who had been settled within a certain period, and all who
should be thereafter settled, to be instituted according to the form set
forth by the General Convention. Another canon provided for the case
of those clergymen who had been settled for more than a year ; dis
pensing in their case with the institution.
A substitute was offered for these proposed canons, declaring that
the 29th and 30th canons of the General Convention, relating to the
institution office, shall be hereafter considered as obligatory in this
9
126 CONSTITUTION OF THE CHURCH
sidered is the power of the G-eneral Convention in the matter.
Under the 30th canon, relating to the election and institution
diocese, any former usages or customs to the contrary notwithstanding..
The whole subject was referred to a committee, and I do not find any
further action upon it.
In New- Jersey, by the constitution of 1811, the members of the con
vention are to be, among others, ''every priest or presbyter who has
been duly instituted rector of any church in this diocese.'7 It appears
from the Journals of 1808 and 1810, that letters of institution were
issued by the standing committee, there being no Bishop.
A striking confirmation of the distinction. taken in the New-York
resolution of 1806, is to be found in a proceeding in Maryland in 18447
although applied to the convention of the diocese. In the report of the
minority in the case of Christ Church, Hagerstown, it is said — " it was
suggested before the committee that the various acts of Assembly
merely prescribe rules by which civil rights are to be acquired and re
gulated, but have no operation or influence of themselves in the deci
sion, whether parties who have complied with these legal requisitions
shall or shall not be adopted into union with the convention. It is as
serted, that whether or not a new congregation shall be received as a
member of this convention, is wholly independent of any civil law, but
depends exclusively upon the canons of the Church, or upon the discre
tion of the body. In the general and abstract, the undersigned are not
disposed to dissent from these doctrines."
I will close this note with a quotation from the canon of the Scottish
Church, which illustrates the principle of the resolution of New-York:
" Whereas it has never been the practice of this Church, nor the wish
of her Bishops, to interfere, directly or indirectly, with the funds or
temporalities of her congregations; it is therefore fully acknowledged
that the right of presentation to any chapel within her pale, is vested
in those who are appointed to manage its concerns, whether known by
the title of trustees, church-wardens, vestrymen. &c., and who by virtue
of their office, procure ihe means of the minister's support ; yet to pre
serve the ancient and regular discipline of an Episcopal community, it
is hereby enacted that no presbyter shall take upon himself the pastoral
charge of any congregation to which he may be presented, before the
deed of presentation be duly accepted by the Bishop." The form of
the institution is annexed to the canons. It recites that a presentation
has been made by the church-wardens, &c., in favor of , to the
church of • . That the Bishop has sustained the same, and does
therefore institute and appoint the said 5 to be pastor or minister
of the said congregation; to perform the duties, &c. (Canon 10, Church
of Scotland, apud Burns, vol. 4, p. 694.)
AND THE GENERAL CONVENTION. 127
of ministers, I have entered into other bearings of the subject
of much consequence, and which Dr. Hawks has made the
subject of an able and elaborate comment.
The principles which I have supposed to prevail respecting
the power of the General Convention, and the clear reasoning
and high authority of the resolution of New- York in 1806, lead
to the conclusion that the General Convention possesses the
power to prescribe institution as a qualification of the clerical
members of a diocesan convention.
I enter not into any question respecting the expediency of
such a provision, as -to which it may deserve remark, that as
far as I can ascertain, New-Jersey is the only diocese in the
Union in which institution is made a necessary qualification
of a delegate.
And if the right to pass such a canon as that of 1804, is
conceded or established, it. will be difficult to find a subject of
Crmrch discipline not within the province of the General Con
vention. I submit, (with much deference, upon a point almost
untouched,) that upon every question of jurisdiction, the in
quiry is not, whether the power has been conferred, but whe
ther it has been denied orjrestricted.
I have now presented some views respecting the powers of
the General Convention, and some examples to explain and
•enforce them. Others will arise in the course of the discus
sion of the separate articles of the constitution, to which I
•shall BOW proceed.
128
CONSTITUTION OF THE CHURCH
TITLE II.
THE ARTICLES OF THE CONSTITUTION.
ARTICLE I.
(In force 1848.)
'There shall be a General
Convention of the Protestant
Episcopal Church in the Uni
ted States of America at such
time in every third year, and
in such place as shall be de
termined by the Convention';
and in case there shall be an
epidemic disease, or any other
good cause to render it neces
sary to alter the place fixed
ARTICLE I.
(1789.)
There shall be a General
Convention of the Protestant
Episcopal Church in the Uni
ted States of America on the
second Tuesday of September,
in the year of our Lord, 1792,
and on the 2d Tuesday of
September in every third year
afterwards in such place as
shall be determined byjxthe
convention; and special meet-
on for any such meeting of ings may be called at other
the Convention, the presiding times in the manner hereafter
Bishop shall have it in his
power to' appoint another con
venient place (as near as pos
sible to the place so fixed on)
for the holding of such Con
vention. (§ 1.)
Special meetings may be
called at any other times in
the manner hereafter to be pro
vided for. (§ 2.)
This Church, in a major
ity of the Dioceses, which
shall have adopted this con-
to be provided for ; and this
Church in a majority of the
States which shall have adopt
ed this constitution, shall be
represented before they shall
proceed to business, except that
the representation from two
States shall be sufficient to
adjourn ; and in all business
of the convention freedom of
debate shall be allowed.
AND THE GENERAL CO N Y,ENT IO.N. 129
stitntion, shall be represented
before they shall proceed to
business ; except that the re
presentation from two Dioceses
shall be sufficient to adjourn]
and in all business of the con
vention freedom of debate shall
be allowed. ($ 3.)
The changes in the Article will appear Irom the portions
italicised. In the convention of 1823 it was put nearly in
its present form ; in 1838, the term " States " was changed
to " Dioceses."
$ 1. In a preceding part of this work, I have
sought to establish the proposition that the G-en- PROVINCIAL
AND NATIONAL
eral Convention was the national or provincial QODNOILS
council of the Church of the United States, con
stituted by a body competent so to establish it — essential for
attaining the objects of the constitution and of its Framers —
indispensable to the unity and perfection of an Episcopal
Church, and necessarily endued with paramount power, ex
cept where it had been expressly restricted. A reference was
made to this portion of the treatise for authorities to sustain
some of the positions there taken, especially as to the re
semblances and differences between the ancient councils and
our convention. I proceed to notice some material elements
of the organization of the former.
It is stated by learned writers that provincial councils
were not held prior to the middle of the second century, and
then first in the east. Now previous to that time the regula
tion of the Church and government of the clergy vested in the
bishops for their respective dioceses, or as they were then
termed Paroscheses. It is also stated that at first the clergy
formed the senate or council of advice of the bishop. This
ISO CONSTITUTION OF THE CHURCH
body consisted of the whole clergy ; and as in early ages they
surrounded the bishop and dwelt with himy and were deputed
for spiritual duties where there was need, the presence of all
was readily obtained.1
But as parishes were erected r and the clergy became
located in and confined to them, the attendance of all must
have been difficult, and sometimes impossible. In this man
ner may we easily account for what is the undoubted fact,
that the cathedral chapter, that is the clergy who remained
and officiated at the bishop's residence, became the substitute
of the clergy at large, and formed the bishop's council. Here
was observed the principle of representation.2
1 Van Espen, in his chapter upon diocesan or episcopal synods,
stales their origin and office thus : " In the first ages of the Church the
bishops were in the habit of convening their clergy whenever matters
of importance occurred for deliberation. This was apparent from the
epistles of Cyprian and other fathers. In the course of time these
conventions came to be held twice a year7 and when the provincial
councils -were fixed to be held annually, the episcopal synods were
regulated in the like manner.
" Besides those who had the cure of souls, the members of these
synods were ascertained not only by the provisions of canons, but by
the varying customs of places." He then proceeds to state the mode
of opening and conducting the synods. This conforms so closely to>
the precedent given in the Introduction to Spelmari's Concilia, that I
cannot but consider the last to be meant of a diocesan synod. It is
observable that some of the laity were admitted at the opening of the
meeting, but after certain prayers and ceremonies, they were excluded.
The offices of these Conventions a*e stated to be the correction
and reformation of excesses and manners, especially of the clergy; in
earlier times the determination of complaints and disputes between
clergy and laity • and that the decrees of councils, general or provincial,
should be more easily executed, and adapted to the particular diocese;
in some. articles.
8 In the supplement to Tan Espenrs work (Tome 2. Tit. 8, ch. 1,)
he says, — "It was observed in the text, that in the course of time, the*
cathedral chapter gradually came to be considered as the senate of the-
Church, arid to represent the whole body of the clergy; so that what
was at first done with the consent and advice of the clergy, began to-
be transacted with the advice of the chapter only, without regard to-
AND THE GENERAL CONVENTION. 131
We may go further. It is clearly proven by records of
councils and comments of the learned, that these cathedral
chapters were represented in provincial councils. The strong
language of Van Espen deserves great attention. He speaks
of some clergy as entitled de jure as well de consuetudine.
Now it is not an unreasonable conjecture, that the bishops
would wish to bring to the councils some of their own wise
and learned assessors ; and thus, perhaps, what only began in
convenience ripened by usage into law. Here we have again
a representation of the whole clergy of a diocese ; first in its
chapter, next in the procurators of that chapter in the provin
cial assemblies.1
My inquiries do not enable me to point out a record of any
canons or regulations of a bishop's council in any age. Yet it
is admitted that some were adopted, and covered certain sub
jects of government.2
the rest of the clergy. This power seems to have devolved upon the
chapter in the tenth or eleventh century, about the time when the elec
tion of Bishops came to be transferred to the canons of cathedrals, to
the exclusion of the other clergy." He then urges the advantages of
an annual meeting of the clergy, or a body of them, to discuss the af
fairs of the Church for the remedy of abuses, and the welfare of souls.
See further, Juris. Eccl. Un. Pars. 1 Tit. 8, ch. 1.
1 See post.
' In the tract of Van Espen De Synodis partialaribus (apud Tractatus
Historico Canonicus, Pars. IX. § 4, vol. ii p. 181,) he says — "It is un
questionable that synods, not only oecumenical or general, but also
national, or prorincial, or diocesan, possess the authority of establish
ing those things which they judge to be for the benefit of the Church
or people ; and their regulations and decrees (ordinationes et statuta,)
have the force of laws through the district which belongs to the synod,
national, provincial, or diocesan. Wherefore that must be held for law
which the respective synods, provincial, diocesan, or national have de
creed." (See also Jur. Eccl. Un. Pars. 1 ch. 2, 10.) Suarez briefly
observes, (De Legibus. Lib. 4, ch. 6, 8.) It is in the second place to
be observed of those minor councils of which the authority is estab
lished, that they may make laws accommodated and proportioned to
their jurisdiction, as well in regard to territory as to the subject matter
t/1 such laws. I deduce this from the common doctrine of the canonists.
132 CONSTITUTION OP THE CHURCH
It will be easily understood however, that as soon as pro
vincial councils became common, the laws of such a synod
would be few and limited. The Bishop himself was present
and assisting at the former ; a portion of his own council was,
it is presumed, also present. The Metropolitan added his
authority and influence. The laws and canons were no doubt
more maturely framed, were of uniform and general operation,
and would supersede the institutions of any separate diocese.
The duties and offices of the provincial councils are per
spicuously set forth in a canon of the 4th council of Lateran.
" According to the ordinance made of old by the holy fathers,
the metropolitans together with their suffragans shall not
He then cites many authors. ll These councils are of a triple order ;
such as are called national, in which are assembled, not only the
bishops, but the archbishops, of every nation under one primate or pa
triarch. Others are provincial, of one metropolis, in which the suffragan
bishops are convened with their archbishops; and lastly, others are
synodal, not usually called councils but synods, in which are assembled
the abbots and priests with cure (Parochi,) with their Bishops." The
author proceeds to state that these cannot bind the whole Church for
want of jurisdiction, unless the Pope ratified the laws, nor could they
act in the more serious matters, but their laws were binding when
conformable to their jurisdiction.
By the 31st canon of the Scottish Church, a diocesan synod is to be
holden annually, and shall consist of the bishop, the dean, and such
clergymen as shall have been instituted to their charges, and shall be
attended by all the clergy of the diocese, unless hindered by some suf
ficient cause. A report is to be made of the state of the congregation,
by every incumbent. " Every diocesan synod may also suggest rules
for the regulation of ecclesiastical affairs, which if approved by the
Bishop, and not inconsistent with the constitution and canons of the
Church, shall have the force of laws within the diocese." (Burns, vol.
iv. p. 781.)
The 32d canon regulates general synods.
Bishop Kennet, says — u Before the reformation every bishop had as
full authority for a synod in his diocese, as the archbishop had for a
synod in his province. And the diocesan constitutions, if not contrary
to any more authentic declarations or general canons of the Church,
were as obligatory within the smaller, as the provincial were within
the larger district." (Ecclesias. Synods t &c., p. 180, Ed. 1701.)
AND THE GENERAL CONVENTION. 133
omit to hold provincial councils in every year ; in which is to
be considered, the correction of offences and reformation of
morals, especially of the clergy, as well as all canonical laws,
and chiefly for enforcing (relegandi) those things which are
ordained in the general council, so that they may be better
observed, by inflicting a just punishment upon transgressors."
(4th Council of Later an, cap. 6, apud Binnii. Concilia, Tome
3, p. 1452. A. D. 1215.) 1
A very important part of their office was the hearing and
deciding the causes and offences of the clergy as well as of
the laity in spiritual matters. It is needless to enter upon the
question so abundantly discussed by the canonists, whether
the Church could regulate the temporal affairs of its members,
or the state could control in spiritual matters, or what related
to them. A judicial power to a certain extent has for ever
been exercised in the Church, and must be possessed. In
early ages the ultimate authority and right of judgment was
vested in these councils.1
1 Van Espen also (De Synodis Provincialibus, Pars. 1, Tit. 20. cap. 2,
Tome 1, 117.) enumerates their chief officers thus — '-'• to inquire
whether any bishop had acted according to law in repelling any one
from the Holy Communion, to hear and determine all accusations of
clergy or laity against the bishops, arid indeed all criminal matters
where the punishment might be deposition — to correct all vices and
abuses, so that the conduct of all might be recalled to the discipline
established by the sacred canons."
Again in speaking of the authority of the monarch in relation to
the decrees of these councils, he says — " that the execution of synodal
decrees is difficult and inefficient, unless the authority of the king or
prince was added to them, is proven by experience. Hence whatever
is ordained and decreed in the synod is presented to the king for his
sanction." He quotes the precedent of the canons of the council of
Zuronensis, (813.) presented to Charles the Good, " that he might order
them to be observed throughout the province."
2 In Fitzherbert's Natura Brevium, 269, is the form of a writ in the
case of Sawbee, condemned for heresy. It recites that the venerable
Thomas, Archbishop of Canterbury, Primate of all England, &c , with
the advice and consent in Council, of his suffragan brethren, as well
as of all the clergy of the province, in his Provincial Council assembled,
134 CONSTITUTION OF THE CHURCH
These assemblies were, of absolute right and
MEMBERS.
originally, composed only of the Archbishop or Me
tropolitan, with all the Bishops of his province. But other
members were in the course of time admitted by custom, and
it would seem that some obtained a right to attend. Among
these were the cathedral chapters and colleges, or representa
tives from them, the abbots and others. It would appear how
ever that in general, the office of such members was merely
advisory, and that they did not possess a vote.
The Metropolitan was at the head of these councils ; but
ordinarily his power was only that of a summoning and pre
siding officer. The Bishops in council could over-rule him,
and he could not dissolve the meeting without their consent.
If in particular provinces a more extended authority prevailed,
it is to be attributed to custom, or to some express excep-
tionary regulation.1 The 2d canon of the Church of Scotland,
after duly observing all legal requirements, did pronounce a definitive
sentence upon, &c. &c. See also Van Espen, Sup. p. 1. Tit. 20, cap. 2.
1 VAN ESPEN, Tit. de Syn. Prov., Tit. 20, cap. 1. JOHNSON'S Vade
Mecum, Part 2, pp. 80 — 81. BEVERIDGE De Metropolitans. The rights
of Metropolitans arose from custom and circumstances, not from any
apostolic regulation. VAN ESPEN, Supplement, Tit. 19. SxiLLiNGrLEET,
Ecc. Cases, p. 255.
In addition to the metropolitan and comprovincial Bishops, essential
members of the Council, a number of the other clergy are found to have
had a place in these assemblies in almost every age. Thus there were
deputies of the cathedral chapters, abbots of various orders, deputies
of collegiate churches, and others, sometimes present. It is said, in
deed, that these had but an advisory office (vocem duntaxat consultivam,)
the Bishops and Metropolitan deciding all matters. The learned Van
Espen (Tit. 20, cap. 16.) remarks : a Qui vero prater Episcopos ad Syno-
dum Provincialem vocandi sint, non e jure scripto duntaxat, sed vel maxime
a consuetudine desumi debet."
A few examples may be useful. At the Council held at Rome,
(A. D. 904,) the preamble to its acts, after stating the presence of the
Pope, of numerous Bishops and a large number of presbyters by name,
adds: Astantibus Diaconis, videlicet, Benedicto Archdiacono, item Bon-
filio Diacono, sen reliquis astantibus. (Binnii Concil., torn. 3, p. 1065.)
So in the Council of Rome, 1080, there were present, " Archbishops
AND THE GENERAL CONVENTION. 135
appears to express and comprise the general attributes of his
office. " Before the distinction of Archbishops was introduced
and Bishops of different cities, as well as abbots and a great number of
clergy of different orders, and of the laity. (Ibid. p. 1287.)
At the Council of Eufurt, in 932, were present two Archbishops,
many Bishops who are named, necnon et Abbatibus, aliisque sacri ordinis
viris. (Ibid. 1056.)
In the year 888, in the reign of Amulphus, a Council was held at
Magentium, at which were present three Archbishops with their suf
fragans, cceterorum non modica multitudine abbatum scilicet, et aliorum sa-
cerdotum. (Ibid. 1025.)
With regard to England, the character of the Councils in Saxon
times has been before largely discussed. (Introduction.) The subsequent
Councils were chiefly those of the province of Canterbury, generally
adopted in that of York. They are to be found in LYNWOOD, and in
JOHNSON'S Laws and Institutions of England. The constitutions of Simon
Mepham, Archbishop of Canterbury, made in London A. D. 1328. are
made by the Archbishop by the authority of the present Council, with
the consent fratrum suffraganeorum. (Appendix to LYNWOOD, p. 41 .) The
Council under John of Stratford. (1342,) was attended by all the pro
vincial Bishops in person, or by procurators. (Ibid. p. 43.) The pre
amble to the constitutions of Thomas of Arundel, is : De consilio et as-
sensu omnium suffraganeorum nostrorum et alienorum Prcelatorum in hac
fieri convocatione prcesentium et Procuratorum absentium, atque ad instan-
tem petitionem Procuratorum totius cleri nostra Provincice." (Ibid. p. 65.)
The most full and decisive precedent which I have found, is that of
the Council of London, in 1309. It is stated by Sir Henry Spelman. in
his Concilia, p. 458.
Concilium provinciale celebraturn in Ecclesid S. Pauli, Londoniarum,
die Lunae proximo post Festum S. Edmundi Regis et Martyris, Anno Do
mini MCCC. nonOj per Dominum Robertum de Wynchelse. Cantuarien-
sem Archiepiscopum, convenientibus tune ibidem, ad citationem ejusdem
Archiepiscopi, Dominis, R. London, H. Wynton, S. Sarum, J. Lincoln,
J. Cicester, J. Norwycense, W. Exon, T. Roffensi, W. Wygorn, J. Ba-
thon, et Wellen. D. Meneven, L. Assaven, A. Bangorensi, Episcopis ;
ceteris Episcopis Suffraganeis Cantuariensis Ecclesice, se excusantibus ,
propter infirmitatem et debilitatem corporum : Necnon Decanis et Procura-
toribus Capitulorum Cathedralium Ecclesiarum, Prapositis, Archipresby-
teris, Archidiaconis, et Procuratoribus Cleri cujuslibet diocesis ; Abbatibus,
Prioribus, ac Procuratoribus Collegiorum, prout in Certijicatorio London.
Episcopi inferius descripto Jit mentio.
The order of celebrating a council, taken by Isidore Mercatore from
the 4th Council of Toledo, is to be found in MANSI'S Concilia, Tome i.
p. 10.] |It is not a general regulation, but governed, probably, the
136 CONSTITUTION OF THE CHURCH
into Scotland, one of the Bishops had a precedency under the
title of Primus Scotorum Episcopus, and the Episcopal col-
councils of Spain."" After the entrance and seating of all the bishops,
those presbyters are called, who for some sufficient reason are permitted
to enter.1 After these enter such approved deacons as the regulation
permits to be present. Then such of the laity as by selection deserve
to attend.2
The first two days were by this order of the Spanish councils de
voted mainly to religious services, and exhortations. On the third day,
all who had been present on the previous days for spiritual instruc
tion were excluded, leaving in the council certain presbyters whom the
Metropolitan had approved as so to be honored. The other presbyters,
deacons, laics, who remained without, were called, if they had any
matter to exhibit to the council. And on the day of the dissolution of
the council, all the canons which in the Sacred Synod had been adopt
ed were read in public before the whole Church.
A very learned author, who has entered upon the subject of
the English Councils at great length, states broadly, that "it is the
particular privilege of English priests to have a right to sit as consti
tuent members in Provincial Synods, and are owned in all conclusive
acts to have a negative on the bishops." (JOHNSON, Vade Mecum,
part i. cap. 16.) This is stronger, as coming from a writer who sums
up the general rule of the Church thus. After observing upon the
composition of the first council at Jerusalem, he says : " In a word,
this instance is sufficient to prove that the priests are capable of belong
ing to synods as constituent members; but which of that order shall
be chosen to sit there, must be decided either by the pleasure of the
bishops from time to time, or by the custom of the Church, introduced
by the, express and tacit consent of the bishops of each province or
country, for several ages past." (Ibid, part ii.p. 53.)
In another part of the same work, he says: " They who allow the
least to them, (the lower clergy) acknowledge that they were by de
grees received into the Provincial Synod, which before consisted only
of bishops and abbots, and were permitted to give their votes in all
things that concerned the doctrine, discipline, and government of the
1 Voce,ntv,r delude presbyteri quos causa probaverit introire. The gloss upon these words
is— The fathers of the Spanish Church did not by this regulation permit these, as presbyters
or ministers, simply to assist at a council, but only certain selected presbyters of approved life
and doctrine. Thus in the council of Kliberitamus, we find, besides the bishops, thirty-six
presbyters to be assembled. But in subsequent Spanish councils, they were not so readily al
lowed a seat, unless they came in the place of absent bishops. And this we find to have been
more strictly observed in the (Ecumenical Councils, where Miore was no place assigned for them.
That is, (says the same authority) such deacons as the bishops deemed worthy of taking a
part in the sacred Assembly. In subsequent Spanish councils they were not admitted.
2 Deinde ingrediantur et Laid qui eiectione concilii (concilia ill margin) interesse meruerint.
AND THE GENERAL CONVENTION. 137
lege having for a century past adopted the old form, it is
hereby decreed, that the Bishops shall without respect either
to seniority of consecration or precedency of dioceses, choose
a Primus by a majority of voices, who shall havo no other pri
vileges xrnong the Bishops but the right of convocating and pre
siding, and that expressly under the following restrictions, &c."
These Councils were, by one of the apostolical canons, as
they are termed, to be held once every year ; and in pursuance
of that direction Episcopal Synods were also to be held yearly.
The provincial councils ceased to be held in the Latin
Church when the supreme power of judging causes was taken
Church ; and have been for near three hundred years an essential part
of the convocation. At first they sat in one room with the Lords
Bishops, and when any affair was in agitation which did particu
larly concern them, they retired to some place by themselves, and re
ported their resolution to the Lords, by one or more eminent members;
but Bishop Kennet doth allow, that by the beginning of the 15th
century, they began to be a distinct house, and to have a settled Pro
locutor regularly chosen at the beginning of the session, the first of
whom, saith he, was the famous Lynwood." (Ibid. p. 101. Ed. 1731.)
Bishop Rennet's work upon the Ecclesiastical Synods and English
Convocations is devoted mainly to a confutation of Mr. Atterbury, and
to the establishment of the proposition that the superior clergy did not,
for a very long period, form constituent members of the Provincial
Synods of England. He insists upon the distinction between a Church
Synod, properly so called, and a Parliamentary Convention. In the
latter, the clergymen were in attendance as members, or by proctors, in
order to tax themselves for aids and supplies to the crown. But for
seven or eight reigns after the Conquest, he states, that the inferior
clergy did not make an authoritative part of proper Ecclesiastical
Synods, nor was their attendance necessarily required there, (p. 171.)
Their right to attend and vote grew up by custom and the call of the
archbishops. He states that the first instance in which they were sum
moned to attend a Provincial Synod was in 1283, (p. 136.) When the
clergy did return select proctors of their own body, it was at first but
to the same purpose of consenting to taxes, not to constitutions and
canons. All the proper ecclesiastical acts were reserved, as before, to
the archbishops and bishops as governors of the Church, till by slow
degrees the inferior clergy were admitted to a share in the spiritual
legislature, which we desire they may still preserve." (p. 146.)
138 CONSTITUTION OF THE CHURCH
from them. The learned Yan Espen traces their decline to
the promulgation of the false decretals, and the usurpations of
the Popes by the system of appeals and other encroach
ments.
And there is a very powerful paper to be found among the
documents published under the auspices of Leopold, Grand
Duke of Tuscany, being a history of the assembly of the arch
bishops and bishops of Tuscany, held in 1787. It is written
by a monk, Francis Barkovich. In speaking of the decretals
he says — " The principal doctrines inculcated in this fraudu
lent collection are, that the Pope is Bishop of all Christendom ;
that all causes of importance ought to be brought by appeal
before him ; that causes relating to bishops belong exclusively
to the Pope ; that he ought to convoke and preside in all
general councils ; that no council, whether general or particu
lar, is binding unless approved of by him ; that he has
authority to allow bishops to give up the churches to which
they have been appointed, for the purpose of being appointed
to a richer and more illustrious see ; and that appeals to the
See of Rome were usual before the Council of Sardica" l
1 Life of Cardinal Scipio De Ricci, (London, 1829, vol. i, p. 287.)
The work is full of striking papers against the powers of the Romish
See, and of wise projects or improvements which, but for the reaction
produced by the madness of the French Revolution, might have led to
a sobered reformation in Italy. Among other documents is one pre
sented to the Senate of Venice in 1769, and another called a defence
of the Counsellor Joseph Raffaele, March 1770, from which I cannot
refrain from quoting the follow ing passage : " Finally Gregory the
Twelfth mounted the papal throne, and reduced into a regular system
the whole of that hitherto unshapely mass of privileges and exemptions
which had been slowly constructed, partly on the ignorance and super
stition of the people, and partly on the weakness and cowardice of
governments. The two Councils of Lateran sanctioned this gigantic
system by the adherence of deputies from the whole Church, who they
said had been assembled in the name and by the authority of the Holy
Spirit. From that period, whoever ventured to attack either the per
sons or the property of the clergy, was threatened with the spiritual
AND THE GENERAL CONVENTION. 139
The diocesan synods fell into disuse when the provincial
councils were abandoned ; l and we cannot but be struck with
the restitution in our own Church of that primitive order and
system which the usurpations of the Popes broke down in the
Latin, and its connection with the state has impaired in the
English Church.
To return to the first article of the constitution.
The matter of Special Meetings is regulated by
x " oPKCIAI*
Special Convention is in the Bishops. This right MEETINGS.
the 49th canon of 1832. The right of calling a
shall be exercised by the presiding Bishop, or in case of his
death, by the bishop, who according to the rules of the House
of Bishops, is to preside at the next General Convention, —
provided that the summons shall be with the consent or on the
requisition of a majority of the Bishops, expressed to him in
writing.
The place of holding a Special Convention shall be that
fixed on by the preceding General Convention for the meet-
ing'of the next General Convention, unless circumstances
shall render a meeting at such place unfit ; in which case
the Presiding Bishop shall appoint some other place.
The Deputies elected to the preceding General Convention
shall be deputies to such Special Convention, unless in those
cases in which other deputies shall be chosen in the mean
time by any of the Diocesan Conventions, and then such
other deputies shall represent in the Special Convention the
Church of the diocese in which they were chosen.
thunder of the Church, and its awful consequences both in this world
and the next. The energies and intelligence of mankind were thus
completely paralysed; and society, in the very period of its infancy,
fell into the weakness and decrepitude of age." — Life of De Ricci. vol.
i. p. 274.
1 Van Espen Juris. Eccl. Un. He deplores the fact that both of
these councils have been so long neglected.
140 CONSTITUTION OF THE CHURCH
There must be a representation of a majority
§ 3. QUORUM. J J
of the dioceses which have adopted the constitu
tion, before the convention can act. But what constitutes
such a representation is not clear.
In the year 1844, a resolution was adopted referring it to
the committee on canon law to consider and report to the
next Convention, what alterations, if any, may be expedient
in Articles I. and II. of the Constitution for the purposes of
defining more exactly what constitutes a quorum of this
house, and what a representation of both the clergy and laity
in this house ; and further what constitutes a majority of
this house voting by dioceses and orders." (Journal 1844,
p. 105.)
In the Convention of 1847, the committee reported " that
a majority of the dioceses must be represented in order to
constitute a quorum ; and that each diocese should be con
sidered sufficiently represented for that purpose, if one cleri
cal and one lay deputy be present in convention. (Journals
1847, p. 107.)
The report was laid on the table, and not acted upon during
that convention. It will be perceived that the committee
omits to answer the second question. As to the latter part of
the report, viz. : that a diocese is represented if one clerical
and one lay deputy is present, it may be noticed, that under
the second clause of the 2d article of the constitution, in cer
tain cases (and among them a neglect to attend) one deputy,
clerical or lay, will represent a diocese.1
Does not this clause apply to the question of a quorum
in cases within it ? There must be a majority of dioceses
which have adopted the constitution represented. But what
is a representation ? As a clause of the second article is ma-
1 1 have seen the MSS. report of Bishop Whittingham, and the printed
report of Bishop Hopkins. In both, the phrase is, or one lay deputy;
in the disjunctive. This was no doubt a clerical error, and in a note of
the Bishop of Vermont, he so treats it.
AND THE GENERAL CONVENTION.
141
terial upon this point, some observations are submitted under
it. See $ 3, post. Art. II.
ARTICLE II.
(In force 1848.)
The Church in each dio
cese shall be entitled to a re
presentation of both the clergy
and laity, which representa
tion shall consist of one or
more deputies not exceeding
four of each order, chosen by
the convention of the dioceses,
In all questions when re
quired by the clerical and lay
representation from any dio
cese, each order shall have one
vote ; and the majority of suf
frages by dioceses, shall be
conclusive in each order, pro
vided, such majority compre
hend a majority of the dioceses
represented in that order. The
concurrence of both orders
shall be necessary to constitute
a vote of the convention.
If the convention of any
diocese should neglect or de
cline to appoint clerical depu
ties, or if they should neglect
or decline to appoint lay de
puties, or if any of those of
either order appointed, should
neglect to attend, or be pre-
ARTICLE II.
(1789.)
The Church in each state
shall be entitled to a repre
sentation of both the clergy
and the laity, which represen
tation shall consist of one or
more deputies, not exceeding
four of each order, chosen by
the convention of the state;
and in all questions when re
quired by the clerical or lay
re-presentation from any state,
each order shall have one
vote ; and the majority of suf
frages by states shall be con
clusive in each order, provided
such majority comprehend a
majority of the states repre
sented in that order; the con
currence of both orders shall
be necessary to constitute a
vote of the convention.
If the convention of any
state should neglect or decline
to appoint clerical deputies, or
if they should neglect or de
cline to appoint lay deputies,
or if any of those of either
order appointed, should neglect
to attend or be prevented by
142
[CONSTITUTION OF THE CHURCH
vented by sickness or any
other accident, such diocese
shall nevertheless be consider
ed as duly represented by such
deputy or deputies as may at
tend, whether lay or clerical.
And if through the neglect
of the convention of any of the
Churches which shall have
adopted, or may hereafter
adopt this constitution, no de
puties, either lay or clerical,
shall attend at any General
Convention, the Church in
such diocese shall nevertheless
be bound by the acts of such
convention.
sickness, or any other accident,
such state shall nevertheless
be considered as duly repre
sented by such deputy or de
puties as may attend, whether
lay or clerical.
And if through the neglect
of the convention of any of the
Churches which shall have
adopted, or may hereafter
adopt this constitution, no de
puties, either lay or clerical,
shall attend at any General
Convention, the Church in
such state shall nevertheless
be bound by the acts of such
convention.
§ 1. NUMBER.
One deputy of each order as fully represents
that order in his diocese as four, which latter num
ber cannot be exceeded. In the Convention of 1847, a ma
jority of the committee on the canon law, reported that three
clerical and three lay delegates would be amply sufficient in
stead of four. (Journal 1847, p. 107.)
The report was not acted upon.
It will be observed that the representation is to
8 2* ^1 T0 be chosen by the convention of the diocese. In the
CHOOSE.
year 1847, a question arose under this clause. A
number of deputies had been returned not chosen directly by
the conventions of the dioceses, but under a provision of the
constitution or canons, which devolved the duty in certain
cases upon the Bishops, &c. For example, in Connecticut,
the 14th article of the constitution provides for the appoint
ment of delegates by the convention, and if a delegate declines,
AND THE GENERAL CONVENTION. 143
the Bishop may appoint a substitute. Under this clause, a
delegate was sent appointed by the Bishop. The regulations
of Ohio, Western New-York, and many other dioceses, are upon
this principle.
The committee on elections reported these cases specially.
After various resolutions had been submitted and discussed,
the following passed : —
" Resolved, as the sense of this House, that members ap
pointed by the authority of the diocesan conventions, are,
according to the practice of the House of Clerical and Lay De
puties, fully entitled to their seats."
This undoubtedly disposes of the question, so far as relates
to the cases then before the convention, and those of a similar
nature. Upon examining the list of the delegates specified in
the report of the committee, it will be found that the cases
were all of a vacancy caused by death or resignation of per
sons chosen by the convention, and whose places were sup
plied by the bishop or others, under a general provision of the
law of the diocese, except in two instances.
In the case of North Carolina, the substituted delegate
was appointed under a resolution passed by the convention at
the time it made the selection of deputies, and which resolu
tion authorized the Bishop to fill up any vacancy. There is no
general provision upon the subject in the constitution or
canons of that diocese. The case of the deputy from Alabama
was the same. (See Journal, Alabama, 1847, p. 18.)
Notwithstanding the generality of the language of the
resolution above cited, it cannot, I presume, be supposed, that
a general canon of a diocese would be valid, delegating the
powers entirely and prospectively to a bishop or committee.
Certainly Ihe constitution contemplates an action by the dio
cesan convention for each General Convention ; that the repre
sentation is w be of the direct apppointment of the Convention.
The necessity or great convenience of a case may well warrant
144 CONSTITUTION" OF THE CHURCH
a delegation of power to fill a vacancy occurring when the
convention is not sitting ; and the course of North Carolina
seems the most regular. Still it may also well be that a
genera] canon may govern such a contingency ; but a pros
pective general transfer of the right to choose representatives
is scarcely consistent with the relation the diocesan convention
is meant to bear to the General, nor with the just construction
of the constitutional provision.
And indeed this view is applicable, though not so strongly,
to a delegation by a convention of authority to choose the de
puties in a particular case, for a particular convention.
In the same convention of 1847 a resolution was referred
to the committee on canons to alter the second article of the
constitution, by inserting after the words " convention of the
diocese," the words " or in such manner as the said conven
tion may prescribe, which choice shall not be delegated to any
other person or persons." The committee did not report upon
the matter at that convention. (Journal, 1847, p. 39.)
The method of choosing delegates to the
CHOOSING ' General Convention is left to the convention of
each diocese. The regulations are not very uni
form, although some points of resemblance are to be found in
all. I select for an example the regulation in "Wisconsin and
New- York, and shall point out the material variances to be
found in the rules of other dioceses.
Article 8, Sec. 1. At every annual convention, four clerical
and four lay deputies shall be elected, by ballot, to represent
this diocese in the General Convention of the Protestant Epis
copal Church in the United States of America.
Sec. 2. The clerical deputies shall be presbyters canoni-
cally connected with this diocese, and having parochial
charges.
Sec. 3. In case of a failure or neglect of the convention to
elect deputies, those already in office shall continue until suc
cessors are chosen.
AND THE GENERAL CONVENTION. 145
Sec. 4. The convention shall also elect, by ballot, a like
number of supplementary deputies of each order, to serve as
deputies contingently.
Sec. 5. It shall be the duty of the deputies elect to signify
to the Bishop in writing, at least six weeks before the meeting
of the General Convention, their acceptance of the appoint
ment, and intention to perform its duties ; in default of
which the bishop shall designate [by certificate in writing] so
many from those of the supplementary deputies as shall be
necessary to insure a full representation of the diocese ; and
the persons so designated shall have all the power and au
thority of deputies duly elected by this convention.
The ninth canon of New- York is as follows :
Sec. 1. The Convention shall, at each regular annual
meeting next preceding a stated meeting of the General Con
vention, elect, by the concurrent ballot of the clerical and
lay members, four clergymen and four laymen, to act as
deputies from this diocese to the General Convention. It
shall also, in like manner, elect four clergymen and four
laymen as provisional deputies, to act in the case hereinafter
mentioned; which deputies and provisional deputies shall
hold their respective stations until successors are appointed,
and shall be deputies or provisional deputies for any General
Convention which may be held during their continuance in
office.
Sec. '2. Should a vacancy occur by resignation, removal
from the diocese, death, or otherwise, among the deputies or
provisional deputies, between the stated times of election,
the vacancy shall be supplied by any convention, during or
prior to which such vacancy shall occur.
Sec. 3. It shall be the duty of the deputies elect to sig
nify to the Bishop, at least two days before the meeting of
the General Convention, their acceptance of the appointment
and their intention to perform its duties ; in default of which
146 CONSTITUTION OF THE CHURCH
the Bishop shall designate from the list of provisional depu
ties so many as may be necessary to insure, as far as prac
ticable, a full representation of the diocese. And the Bishop
shall in like manner designate from the same list of provi
sional deputies one or more, as the case may be. to supply
any deficiency in the representation of this diocese which
may in any way occur. And the person or persons so de
signated by the Bishop, being furnished with his certificate
thereof, shall have all the power and authority of depu
ties duly elected by the convention.
Sec. 4. In case of a vacancy in the Episcopate, or the
inability of the Bishop to act, the power conferred upon the
Bishop by this canon shall be exercised by the Standing
Committee.
One important difference in the method pursued in these
two dioceses is this, — In Wisconsin, the vote by ballot is
of the members clerical and Jay collectively, a majority de
termining. The practice in New-York is for the orders to
ballot separately, and a majority in each order is requisite.
Even if it were doubtful whether this was enjoined by the
language of the canon itself, yet it follows from the provision
of the 12th canon, directing "that when an election is by
ballot, a majority of the votes in each order shall be necessary
to a valid election."
In Wisconsin in 1847, the votes having been inadvertently
taken by orders instead of by individuals, a resolution was
passed declaring the election void, and the convention pro
ceeded to choose by a joint ballot. (Journal, p. 19.) This
was the same year in which the Constitution was adopted.
The phraseology of the canon of Missouri is, — " Shall
elect by the concurrent ballot of the clerical and lay mem
bers." I am not aware, from an examination of the Journal,
whether the balloting is individually, or by orders.
In Ohio, the rule is the same as in Wisconsin and ex-
AND THE GENERAL CONVENTION. 147
pressed clearly. It is to be by a joint ballot of the clergy and
laity, and a majority of votes shall be required for an election.
(Article VII., Const. 1847.)
The canon (9 of 1847) of Illinois is exactly like that of
Missouri, except in requiring the delegates to be communi
cants. But there is also a provision (Canon 13) precisely
like that of the 12th canon of New- York before cited.
In Louisiana the election is by a majority of the votes of
the clergy and laity together. In case of a vacancy, by death
or resignation, a substitute or substitutes may be appointed
by the Bishop ; or if there be no Bishop, by the President of
the Standing Committee. (Article VII. and IV., Constitution,
1847.)
I apprehend that the same rule prevails in Mississippi and
in Florida. In the latter diocese, vacancies are supplied by
the concurrent vote of the remaining clerical and lay depu
ties. (Canon 9, 1847.) This is also the regulation in
Georgia. In South Carolina the provision of the 13th Article
is, that at every annual Convention four presbyters and four
laymen shall be chosen by ballot. By the 9th Article, the
members are to deliberate and vote as one body, unless a
separate vote of each order is called for in the manner pre
scribed — " and a majority of both orders shall be necessary
for a decision."
In the year 1847, these clauses received a practical con
struction. I should observe that the provision as to choosing
members of the standing committee is the same nearly as
that relating to delegates.
The votes upon an election were directed to be taken by
orders, and this was done both as to delegates and members
of the standing committee.
A question arose as to the interpretation of the 9th Article
of the Constitution, and it was ruled, that " a majority "fc there
means " a majority in each order of the votes cast"
143 CONSTITUTION OF THE CHURCH
Now a similar provision exists, I believe, in every diocese,
for compelling a vote by orders; and if this is applicable to
an election as to a vote upon a measure, then the vote in
orders may be had even where a joint vote of individuals is
allowed.
In North Carolina, there is no direct enactment upon this
subject. The 9th article of the constitution prescribes the
mode of voting where no division is called for, and where it
is. This provision is general as to all questions coming be
fore the convention. In the Journal of 1847, it is stated
generally, that the convention proceeded to ballot for dele
gates; and then a resolution was adopted, authorizing the
Bishop to fill any vacancy which might occur.
In a number of dioceses, the direction to take the vote by
orders is express. Thus in Connecticut, each order shall ap
point delegates by ballot, but the delegates thus appointed
must be confirmed by the concurrent votes of both orders in
Convention.
It is submitted that the system prevailing in New- York,
Wisconsin and some other dioceses, of guarding as much as
possible against a vacancy by choosing deputies and provi
sional deputies, best comports with the spirit of the Constitu
tion. The selection by a bishop or standing committee from
these in cases of vacancy is a matter of expediency, and
wholly unobjectionable.
Again, it is considered that a right to choose by orders
ought to be retained in the system. Whether we look upon
the delegates as representing the diocese, as they truly do, or
the Convention, the right to prevent an overwhelming vote of
one order forcing upon the other an unacceptable representa
tive ought to exist. And a concurrence is necessary, because
it is the diocese, and not the orders to be represented. With
an amendment of this character, the provisions in Wisconsin
appear both full and clear, and might be taken as a model to
produce uniformity.
VOTE
BY ORDERS.
AND THE GENERAL CONVENTION. 149
In one instance the General Convention has limited the
choice of lay delegates. By Canon VI. of 1838, no person
who is a candidate for holy orders in the Church shall be
permitted to accept from any diocesan convention an ap
pointment as a lay deputy to the House of Clerical and Lay
Deputies.
In the Constitution, as twice published by § 4- CALL FOR
Bioren in the Journals, (p. 61 and p. 75,) the
requisition for a vote by orders may be made by
the clerical or lay representation of any diocese. In the
other copies of the Constitution I have examined the word is
and. The practice requires a united request.
Upon such a requisition, the orders vote separately ; and
instead of there being a vote of the members in convention,
'there is a vote of the orders, each order being considered as
having one vote. A majority of the clerical members of a
diocese settles of course the vote of that order for the diocese ;
and so of the lay votes.
For example, if there is one clergyman only from a dio
cese, his vote is the vote of the order of that diocese. If two,
and they differ, the diocese is divided, and the vote becomes
in effect a negative. If more than two, a majority decides
the vote of the diocese in the clerical order.
But although the majority of the number of dioceses set
tles the vote of the order, it must be a majority of the dio
ceses represented. Thus if there are twenty-eight dioceses, all
represented, fifteen must unite to carry a measure. If one of
the dioceses is divided, still it is represented so as to make
the fifteen necessary. Fourteen would not be sufficient. An
instance to illustrate this occurred in the Convention of 1847.
(See p. 89 of the Journal.) Twenty-four Dioceses had a
representation of the laity ; 12 voted in the affirmative upon
a resolution ; 10 in the negative — 2 were divided. Of course
the resolution was lost in that order.
150 CONSTITUTION OF THE CHURCH
I am not aware whether the case has ever occurred
of deputies of a diocese, lay or clerical, being present and
refusing to vote. Is it to be considered that the diocese is
still represented, so that it must be counted in order to decide
whether a majority of the dioceses have voted for a resolu
tion ? The general test of representation is in practice the
actual voting. The clerk considers and counts those Dioceses
which vote as represented.
This branch of the article provides for the case
§ 5. CASE OF
ABSENT of an omission of the convention to appoint lay de
legates or clerical delegates, or of the neglect 5*
any of those of either order to attend, or a prevention by acci
dent or sickness. In such case the diocese is represented by
any deputy, lay or clerical, who may attend.
Now undoubtedly this is not meant as a representation of
both orders of a diocese, in such cases, by the presence of a
deputy of one order. (See HAWKS' Con. Sf Canons, p. 21.) The
distinction is between a representation of an order, and that
of a diocese. A diocese may be represented by a single de
puty of either order in the cases specified ; and this leads to a
qualification of the rule laid down by the committee on canon
laws before quoted, that one lay and one clerical deputy must
be present in order to proceed to business. I apprehend that
a full representation of fourteen dioceses, with a clerical de
puty from another, if all the lay delegates were prevented by
sickness, &c., would suffice.
And with respect to the other clause of the inquiry ad
dressed in 1844 to the committee, viz., " what constitutes a
majority of the house voting by dioceses and orders," it may
be suggested, that it is a majority of the votes of the dioceses
present by a clerical representation, concurring with a ma
jority of the votes of the dioceses present by a lay representa
tion ; the votes in each case being given separately.
Thus there are 28 dioceses. If 26 are represented in the
AND THE GENERAL CONVENTION. 151
clerical order, 14 must vote affirmatively to carry a measure ;
and it is wholly immaterial how many vote negatively, and
how many are divided. If 23 dioceses are represented in the
lay order, twelve must in like manner vote affirmatively.
And if fourteen in the one order and twelve in the other do so,
the measure is carried.
But to test the above views as to both questions submitted
to the committee — 1st, It is supposed to be clear that if there
is a representation of fifteen dioceses in the clerical order, and
thirteen in the lay order, (the lay deputies of all other dioceses
being prevented by sickness, &o., or not appointed,) there are
the requisites of a quorum to transact business.
Then upon a vote by orders, eight would be a majority of
dioceses in the clerical order ; and seven in the lay order. It
is submitted that such a vote would be legal, and bind the
dioceses whose deputies did not attend.
But to put an extreme and test case. — Suppose a full re
presentation in the lay order of fifteen dioceses, and no diocese,
or but one, represented in the clerical order : would it be suf
ficient ? It is submitted, it would not.
The constitution must be so construed on this point, as
that each provision in it may have effect. Now, a vote by
orders may be required : and when required, the vote of the
order is decided by a majority of the dioceses represented in it.
Hence it seems necessary to meet this case, that there should
be, first, a representation of each order ; and next, such a re
presentation as admits of a majority. It is therefore presumed
that there must be a representation in the case supposed, of
at least three dioceses.
The conclusion then seems to be$ that the convention is
competent to transact business if there is a representation in
one order of a majority of the dioceses in union, and a repre
sentation in the other order of three or more dioceses.
152
CONSTITUTION OF THE CHURCH
The question as to alterations of the constitution is very
different, as will be afterwards noticed.
ARTICLE III.
(1848.)
The Bishops of the Church,
when there shall be three or
more, shall, whenever General
Conventions are held, form a
separate house, with a right to
originate and propose acts for
the concurrence of the House
of Deputies, composed of cler
gy and laity ; and when any
proposed act shall have passed
the House of Deputies, the
same shall be transmitted to
the House of Bishops, who
shall have a negative there
upon ; and all acts of the
convention shall be authen
ticated by both Houses.
And in all cases the House
of Bishops shall signify to the
convention their approbation
or disapprobation (the latter
with their reasons, in writing,)
within three days after the
proposed act shall have been
reported to them for concur
rence ; and in failure thereof,
it shall have the operation of a
ARTICLE III.
(1789.)
The Bishops of this Church,
when there shall be three or
more, shall, whenever General
Conventions are held, form a
separate house, with a right to
originate and propose acts for
the concurrence of the House
of Deputies, composed of cler
gy and laity ; and when any
proposed act shall have passed
the House of Deputies, the
same shall be transmitted to
the House of Bishops, who
shall have a negative there
upon, unless adhered to by
four-fifths of the other house ;
and all acts of the Convention
shall be authenticated by both
Houses.
And in all cases the House
of Bishops shall signify to the
convention their approbation
or disapprobation (the latter
with their reasons, in writing,)
within three days after the pro
posed act shall have been re
ported to them for concurrence ;
and in failure thereof, it shall
have the operation of a law.
A KB THE GENERAL CONVENTION 153
law. But until there shall be But until there shall be three
three or more Bishops as afore- or more Bishops as aforesaid,
said, any Bishop attending a any Bishop attending a Gre-
General Convention shall be a neral Convention shall be a
member ex officio, and shall member ex officio, and shall
vote with the clerical deputies vote with the clerical deputies
of the diocese to which he of the state to which he be-
belongs, and a Bishop shall longs, and a Bishop shall then
then preside. preside.
In the constitution as proposed in 1786, the provision (the
fifth) was this : " In every state where there shall be a bishop
duly consecrated and settled, and who shall have acceded to
the articles of this ecclesiastical constitution, he shall be con
sidered as a member of the General Convention ex officio, and
a bishop shall always preside in the General Convention, if
any of the episcopal order be present."
In the constitution as adopted in August, 1789, the bishops,
when there should be three or more, were to form a House of
Revision, and any act of the convention was to be sent to them
for concurrence. If not concurred in, it would yet become a
law if three-fifths of the convention adhered to it. (Bioren,
p. 61.) In October, 1789, the deputies from Connecticut,
Massachusetts and New Hampshire expressed their willing
ness to join in the union, provided the third article was so
amended as to give to the House of Bishops the right to origi
nate acts, and a full negative. A committee of the conven
tion1 reported in favor of both propositions, "as having a
tendency to give greater stability to the constitution, without
diminishing any security possessed by the clergy or laity."
The convention adopted the first branch of the recommen
dation, but modified the right to a negative so as to enable
'Rev. Dr. William Smith, Rev. Dr. Robert Smith, Rev. Dr. Benja
min Moore, Richard Harison, and Tench Cox. Esqrs.
154 CONSTITUTION OF THE CHURCH
four-fifths of the House to pass the act. Bishop White states
" that the report as to a full negative would have been adopted
had not a gentleman from Virginia stated, that it might cause
the measure to be disowned in that state. The eastern gen
tleman acquiesced, but reluctantly. Had there been no more
than their apprehension of laws passing by a majority of four-
fifths after a non-occurrence of the bishops, the extreme
improbability of this would, it is thought, have been confessed
by them. But the truth is, they thought that the frame of
ecclesiastical government could hardily be called ep scopal,
while such a matter was held out as speculatively possible."
In 1792, a proposition was submitted to render this nega
tive absolute, and in 1808, it was passed by six out of seven
states represented, with the clerical vote of Pennsylvania ; the
laity not voting, though favorable to the measure, on the
ground that the proposition had not been communicated to
the state convention.1
Indeed the progress of this measure is a remarkable tribute
to the prevalence of just Church views. In the year 1787,
we find South Carolina instructing her delegates to insist as a
condition of union, that she should not be compelled to receive
a bishop. Through a series of years we find Virginia declar
ing among her canons, that the office of a bishop differed in no
respect from that of other ministers, except in the powers of
ordination and confirmation, the right of superintending the
conduct of the clergy, and of presiding in ecclesiastial assem
blies. So when the absolute veto was suggested we find the
opposition to it invincible. But the feelings and prepossessions
which induced all these actions have passed away, and I pre
sume it would be difficult to find a Churchman in the United
States who would now advocate either of them.
1 See Journal, 1303, p. 249, Bioren j and Bishop White's Memoirs, 258.
AND THE GENERAL CONVENTION.
155
ARTICLE IV.
(1847.)
The Bishop or Bishops in
every Diocese, shall be chosen
agreeably to such rules as
shall be fixed by the conven-
vention of that Diocese. ($ 1.)
Every Bishop of this
Church shall confine the ex
ercise of his episcopal office to
his proper diocese, unless re
quested to ordain, or confirm,
or perform any other act of
the episcopal office by any
Church destitute of a Bishop.
02.)
ARTICLE IV.
(1789.)
The Bishop or Bishops in
every state, shall be chosen
agreeably to such rules as
shall be fixed by the conven
tion of that state ; and every
Bishop of this Church shall
confine the exercise of his
episcopal office to his proper
diocese or district, unless
requested to ordain, or con
firm, or perform any other act
of the episcopal office by any
Church destitute of a Bishop.
1. MODE OF
CHOICE.
In 1838, the words, " or district," were stricken out, and
the word diocese substituted for state. The article in 1785,
was almost identical with the present.
I look upon the first clause of this article as
adopted in order to exclude the General Convention
from passing regulations for the choice of a Bishop.
It was deemed more appropriate for the action of the dioceses ;
yet but for this clause, a canon of the General Convention
would have governed it.
Dr. Hawks has pointed out the use which was made of
this part of the canon in the discussions respecting Bishop
Meade, when elected Assistant Bishop in Virginia, in the year
1827. The convention had annexed a proviso to the act of
election, declaring that such election should not be deemed to
entitle him to the situation of Bishop on the death of Bishop
Moore, the diocesan.
When the case was before the General Convention, various
156 CONSTITUTION OF THE CHURCH
objections were made to this provision. A considerable num
ber were so opposed to it as to consider it sufficient to justify
a refusal to sign the testimonial unconditionally ; but they
were willing that it should be delivered by the presiding
Bishop, upon his receiving evidence of a resolution by Vir
ginia, that the Assistant Bishop should succeed. A resolution
passed the House of Bishops expressing their disapprobation
of the provision, and one equally strong was adopted in the
House of Deputies. (See Journals, 1829, pp. 24 and 83.)
At the next Convention of Virginia, the condition was re
scinded, and thus another proof was given how surely mode
ration in the assertion of undoubted principles will lead to
success.
In the General Convention of 1829, a canon was passed,
preventing the recurrence of the difficulty, and meeting the
case. After providing for the cases in which an Assistant
Bishop might be elected, it was declared that he should in all
cases succeed the Bishop in case of surviving him. The pre
sent canon is the 6th of 1832. This will be more particularly
noticed in another part of the work.
The methods of electing a Bishop in the various dioceses,
are in some particulars alike. In North Carolina, for example,
the following is the provision : " The order of the clergy shall
nominate and appoint by ballot, some fit and qualified clergy
man for that office, and if this appointment be approved by
the lay order, he shall be declared duly elected. In the nomi
nation and appointment, a majority of each order shall deter
mine the choice, provided that two-thirds of all the clergy en
titled to vote be present, and two-thirds of all the congrega
tions entitled to vote be represented ; otherwise two-thirds of
the votes of each order shall be necessary to determine the
choice." (Const. Art. 10.)
The tenth article of the Constitution of South Carolina is
similar; that of Florida is in precisely the same words: and
AND THE GENERAL CONVENTION. 157
that of "Wisconsin to the same effect. (Art. 11.) (Art. 6.)
That of Mississippi is this : " In the election of a Bishop the
clergy and laity shall vote separately, (the clergy individually,
and the laity by congregations,) and the concurrence of a ma
jority of each order shall be necessary to constitute a decision."
In New- York, the two orders must always vote separately ;
the clergy by individuals, and the laity by congregations. The
concurrence of a majority of each order is necessary for a de
cision.
In Maryland, the clergy choose by ballot, and the vote of
two-thirds of that order is necessary. The appointment is
presented to the order of lay delegates, and must be approved
of by two-thirds of that order. It may be observed, that there
is but one lay delegate from every parish. The regulation in
Virginia is the same, except that a majority of each order is
sufficient.
In Connecticut, the two orders shall separate, and the or
der of the clergy choose a person by ballot, and communicate
it to the order of lay delegates ; and if on ballot, the person is
approved by the lay order, he shall be declared duly elected.
In the above-mentioned election, a majority of each order
shall determine a choice, provided that two-thirds of all the
clergy entitled to vote be present ; otherwise two-thirds of the
vote of each order present shall be necessary to determine a
choice.1
From these examples it will be seen that great uniformity
prevails, not only in requiring the assent of the laity to a
choice, but also in conducting the election by a vote of orders;
and generally in making the lay vote a vote of churches or
congregations.
The necessity of a union of a representation of the Laity
in the election of a Bishop, is but a recurrence to the practice
1 These various provisions are taken from the different Journals of
1847.
11
158 CONSTITUTION OF THE CHURCH
of primitive times. It maybe doubted inikcd, \vhether the
same well defined power of the people existed ; whether there
was an absolute necessity for their approbation ; but at least
they were consulted, and in some instances it certainly ap
pears that the election was by the suffrage of the clergy and
the people.1
§2. RESTEIG- A Diocese signifies the circuit of a Bishop's
TION TO Dio- jurisdiction. The method of ascertaining the
CESK. boundaries on a question of jurisdiction is pointed
out in Burns9 Ecclesiastical Law? Such a question can
scarcely arise in our country, where the dioceses are usually
co-extensive with states, and upon a division of a state are
accurately fixed.
The rule which is embodied in this part of the constitution
is among the oldest recorded in the legislation of the Church.*
A bishop, however, may perform divine offices and use his
1 I believe that Van Espen stands as high as a canonist as any
other, especially among ihose who oppose the usurpations of the Pope
upon the prerogatives of monarchs, or the authority of bishops. In his
chapter De Elec. & Norn. Episcoporum, Part 1, Tit. 13, Cap. 1, may be
found a full list of authorities One of them runs thus : " Sed et Laid
nobiles ac cives adesse debebunt • quoniam ab omnibus dcbct eligi, cui dcbet
ab omnibus obediri*''1 But in another passage he says : " Neque etiam
eo tempore electio ilia plebis jus aliquod ad rem dabat ipsi electo, sed
potius erat simplex postulatio ipsius plebis et cleri, de persona sibi grata
ordinanda in suum pastorem."
The same author points out how the election gradually fell upon
the Cathedral chapters.
2 Vol. 2, p. 157, a.
3 Van Espen (Part l,Tit. 16, Cap. 3.) enters largely into the subject.
He cites the twenty-second canon of Antioch, A. D. 351 : " In aliam
civitatem quse ei subjecta non est, non ascendat, nee in regionem quse
ad eum non pertinet ad alicujus ordinationem nee Presbyterum nee
Diaeonum constituat in locis alio Episcopo subjectis. nisi cum voluntate
proprii illius regionis Episcopi." Again: " Haecque disciplina con-
fusioni tollendse adeo necessaria visa fuit. ut earn Ecclesia in bodiernam
usque diern conservaverit, variisque canonibus frequenter stabilierit,
interdixeritque severe Episcopis. in aliena Dicucesi quidquam ordinare
aut agere sine licentia Episcopi Diaecesis illiuSj" &c.
AND THE GENERAL CONVENTION. 159
episcopal habit in the diocese of another.1 Thus, all » dices
not strictly appertaining to the episcopal function — ad r. blis
tering the communion, &c., may be performed by him.
The General Convention has passed a canon for the regu
lation of the performance of episcopal duties in vacant dio
ceses, or where the bishop is under a disability. This subject
will be more fully discussed in another part of this work.
ARTICLE V.
A Protestant Episcopal Church, in any of the United
States, or any territory thereof, not now represented, may at
any time hereafter be admitted, on acceding to this constitu
tion. A new diocese, to be formed from one or more existing
dioceses, may be admitted under the following restrictions:
No new diocese shall be formed or erected within the
limits of any other diocese, nor shall any diocese be formed by
the junction of two or more dioceses or parts of dioceses, un
less with the consent of the bishop and convention of each of
the dioceses concerned, as well as of the General Convention.
No such new diocese shall be formed which shall contain
less than eight thousand square miles in one body, and thirty
presbyters who have been for at least one year canorricaljy
resident within the bounds of such new diocese, regularly
settled in a parish or congregation, and qualified to vote for a
bishop. Nor shall such new diocese be formed, if thereby any
existing diocese shall be so reduced as to contain less than
eight thousand square miles, or less than thirty presbyters,
who have been residing therein, and settled and qualified as
above mentioned.
In case one diocese shall be divided into two dioccsos,
the diocesan of the diocese divided may elect the one to
which he will be attached, and shall thereupon become the
1 BURNS' Ecclesiastical Law, vol. 2, p. 158. He cites the Clem., 5, 7,
2 : <; Simili modo concedimus episcopout in locis eisdem," &c.
160 CONSTITUTION OF THE CHURCH
diocesan thereof; and the assistant Bishop, if there be one,
may elect the one to which he will be attached, and if it be
not the one elected by the Bishop, he shall be the diocesan
thereof.
Whenever a division of the diocese into two dioceses shall
be ratified by the General Convention, each of the two dio
ceses shall be subject to the constitution and canons of the
diocese so divided, except as local circumstances may pre
vent, until the same may be altered in either diocese by the
convention thereof; and whenever a diocese shall be formed
out of two or more existing dioceses, the new diocese shall
be subject to the constitution and canons of that one of the
said existing dioceses to which the greater number of clergy
men shall have belonged prior to the erection of such new
diocese, until the same may be altered by the convention of
the new diocese.
In carrying out this article of the constitution the General
Convention has passed the eighth canon of 1838.
§ 1. Whenever any new diocese shall be formed, within
the limits of any other diocese, or by the junction of two or
more dioceses or parts of dioceses, and the same shall have
been ratified by the General Convention, the Bishop of the
diocese within the limits of which another is formed, or in
case of the junction of two or more dioceses or parts of dio
ceses, the Bishop of eldest consecration over the dioceses fur
nishing portions of such new diocese shall thereupon call the
Primary Convention of the new diocese, for the purpose of
enabling it to organize, and shall fix the time and place of
holding the same, such place being within the territorial limits
of the new diocese.
§ 2. In case there should be no Bishop who can call such
Primary Convention pursuant to the foregoing provisions,
then the duty of calling such convention for the purpose of
organizing, and the duty of fixing the time and place of its
AND THE GENERAL CONVENTION. 161
meeting, shall be vested in the Standing Committee of the
eldest of the dioceses, by the junction of which, or parts of
which, the new diocese may be formed. And such Standing
Committee shall make such call immediately after the ratifi
cation of a division by the General Convention.
§ 3. Whenever one diocese is about to be divided in two
dioceses, the convention of the said diocese shall declare
which portion thereof is to be the new diocese, and shall
make the same known to the General Convention before the
ratification of such division.
The first part of this article relates to the formation of a
new diocese in a state or territory in which no diocese has
before existed.
In 1789 the article was merely this — A Protestant Epis
copal Church, in any of the United States, not now repre
sented, may at any time hereafter be admitted, on acceding
to this constitution.
In 1838 the words " or any territory thereof, " were in
serted in the first clause, and the residue of the article added.
In the case of Wisconsin, in 1847, the following was the
course of proceeding: — The missionary Bishop invited all the
clergy canonically connected with him, and resident in Wis
consin, to meet at a certain place and time, and to bring with
them a delegate or delegates, not exceeding four from each
parish with which they were connected, for the vacant parishes
in their vicinity. The meeting was organized, the mission
ary Bishop in the chair, and passed rules of order, adopted a
constitution and canons, and appointed delegates to the Gen-
eral Convention.
At the General Convention, in October, 1847, the appli
cation for admission into union, together with a copy of the
constitution, was presented, and referred to a committee. —
Journal, p. 16.)
162 CONSTITUTION OF THE CHURCH
The committee reported that they had examined the con
stitution, and finding an accession to the general constitution
and canons of the Church, recommended that the diocese of
"Wisconsin be admitted into union with the General Conven
tion of the Protestant Episcopal Church in the United States.
The House of Bishops concurred.
On some occasions the House of Bishops has exercised the
right of passing upon the constitution and canons of the
Chnrch applying. Thus, in 1829, upon the application of
Tennessee, the committee to whom was referred the constitu
tion and canons, reported, that they recommended a concur
rence with the resolution of the House of Clerical and Lay
Deputies, but at the same time proposed " that it be recom
mended to the convention of that diocese to repeal the pro
viso to the third canon, passed July 2d, 1824, as highly in
expedient in itself, and not conformable to the principles of
the Church." — (Journal, page 79.) With this the other
house concurred. — (Ibid. p. 80.)
So upon the application of Kentucky, the committee re
ported that they had examined the constitution of the said
diocese, and found it conformable to the principles and order
of the Church.
In 1832, upon the application of Michigan, the clause of
accession to the constitution of the Church was omitted in the
constitution of that diocese. There was, however, other evi
dence in its journals of the fact. The committee reported
that it was highly proper and expedient that the declaration
of accession, and the acknowledgment of the authority of the
constitution and canons, should appear in the constitution of
any Church applying to be admitted into union. They recom
mended a resolution of admission, with the expectation that
the omission would be supplied. The convention adopted the
resolution.
§ 2. As before observed, the latter part of the article, and
AND THE GENERAL CONVENTION. 163
the eighth canon under it, were adopted in the year 1838.
This arose from the application of New- York for a division of
the diocese.
It is not necessary to state the various views which were
taken upon this subject, and the other measures preferred by
a considerable body of the churchmen of the diocese. The
discussions resulted in a vote of the convention, September 11,
1838, that the Protestant Episcopal Church in the state of
New- York be divided into two dioceses, and that the line of
certain counties, as established by law, be the boundary line
between them ; that the delegates be requested to present the
resolution to the General Convention, &o., and request its ra
tification of and consent to the said division.
To this was added the consent of Bishop Onderdonk, of
New- York, pursuant to the constitutional provision.
A resolution was then adopted, reciting the above men
tioned documents, and declaring that the convention did ratify
the said division of the diocese of New- York into two dioceses,
by the formation within its limits of the new diocese above
described, such division to take effect on the first of November
next ; and that this convention does hereby recognize the
union with the General Convention of the new diocese west
of the above named counties, &c.
ARTICLE VI. ARTICLE VI.
(1848.) (1789.)
The mode of trying Bishops In every state the mode of
shall be provided by the Gen- trying clergymen shall be in-
eral Convention. The court stituted by the convention of
appointed for that purpose the Church therein. At every
shall be composed of Bishops trial of a Bishop there shall
only. In every diocese the be one or more of the Episco-
mode of trying Presbyters and pal order present, and none
Deacons may be instituted by but a Bishop shall pronounce
164 CONSTITUTION OF THE CHURCH
the convention of the diocese, sentence of deposition or de-
None but a Bishop shall pro- gradation from the ministry
nounce sentence of admoni- on any clergyman, whether
tton, suspension, or degrada- Bishop, Presbyter, or Deacon,
tion, on any clergyman, whe
ther Bishop, Presbyter, or
Deacon.
The article of 1789 was varied in 1838, by substituting
the word diocese for state, and so continued until 1841, when
the first two sentences were added to it, and the other altera
tions made. The words italicized will show the omissions
and variations.
The first clause of this article will be adverted to hereafter,
when the canon which has been adopted under it is examined ;
and the last clause under the head of SENTENCES. The change
in the other clause requires particular attention.
In the article of 1789 — and so it continued until 1841 — the
phrase was, " the mode of trying clergymen, in every state,
shall be instituted by the convention of the Church therein.'*
It is now, " may be instituted." Dr. Hawks, it will be seen,
has twice adverted to the subject of the impossibility of ob
taining uniformity in the judicial decisions of the Church,
while each diocese is left to its own system of proceedings and
rule of decision. (See Constitution andCanons, pp. 34 and 57.)
He treats this as the weakest part of our ecclesiastical ar
rangement, and states that a canon had been prepared upon
the subject, which lay over among the unfinished business of
1835 and 1838, but that it was doubtful whether a canon
could accomplish it while this article of the constitution was
in force. In 1841, as before observed, this article was changed,
and the word may was substituted for the word shall. The
clause is now, " that in every diocese the mode of trying
clergymen may be instituted by the convention of the diocese."
AND THE GENERAL CONVENTION. 165
It is probable that this change was made with a view to
this question of the authority of the General Convention, al
though I have not found any action or resolution to prove the
supposition. But the point does not yet seem free from dif
ficulty.
Let the case be supposed of a canon for trial of a clergy
man passed in a diocese, and a canon of the General Conven
tion afterwards passed, varying from and inconsistent with
some portion of the diocesan law. Is the latter superseded ?
On the one side, this view may be presented — The separate
dioceses had the original exclusive right to legislate upon the
subject. Had the constitution of 1789 contained nothing re
specting it, the right would have been vested in the General
Convention, leaving the power in the diocese to legislate pre
vious to an action by that body, but then superseding that
power. But the several dioceses did in the constitution de
clare that the mode should be instituted by the particular con
ventions — thus, it must be admitted, excluding the General
Convention from acting at all. Then came the alteration in
1841. Now this alteration amounts to a permission for the
separate conventions to establish the mode of trial. It is con
sistent with, perhaps implies the existence of, the same power
in another body. That body is the General Convention. But
can that power be more than concurrent ? And if no more,
then, when a diocese has exercised the power, it will be dif
ficult to sustain a right in the General Convention to super
sede it. The analogous rule may apply, that where there is
a concurrent jurisdiction, the tribunal which has first obtained
control of the case retains it.
On the other side, this'view of the question may be taken:
If there was no article of the constitution, the General Con
vention would possess the power. The dioceses could, how
ever, act until the General Convention acted. When the latter
adopted a canon on the subject, that would be supreme and
166 CONSTITUTION OF THE CHURCH
exclusive in all points which it reached. Now the clause al
lowing the separate conventions to provide the mode, was
merely- a declaratory recognition of the law. They had the
authority without it. These conventions, then, can be in no
stronger position under the clause than they would have been
without it. Their canons would be superseded by the act of
the General Convention in the one case ; they will be so
equally in the other. The construction then is, that the dio
ceses may act until the General Convention dues so.
It will be seen that this argument rests on the principle
advocated in this work, of an inherent power in the General
Convention, not derived from a grant in the constitution. If
that principle is sound, then the latter view, in the judgment
of the author, is the true one.
ARTICLE VII.
No person shall be admitted to holy orders until he shall
have been examined by the Bishop and by two Presbyters,
and shall have exhibited such testimonials and other requi
sites as the canons in that case provided may direct. Nor
shall any person be ordained until he shall have subscribed
the following declaration :
" I do believe the Holy Scriptures of the Old and New
Testaments to be the word of God, and to contain all things
necessary to salvation ; and I do solemnly engage to conform
to the doctrines and worship of the Protestant Episcopal
Church in the United States."
No person ordained by a foreign Bishop shall be permitted
to officiate as a minister of this Church until he shall have
complied with the canon or canons in that case provided, and
shall have also subscribed the aforesaid declaration.
This is precisely the form in which the article was adopted
in 1789.
AND THE GENERAL CONVENTION.
167
In 1786 the first clause ran thus — No person shall be or-
dained until due examination by the Bishop and two Presby
ters, and exhibiting testimony of his moral character, signed
by the minister and a majority of the vestry of the church
where he has last resided.
The clauses of this article will be particularly referred to
when the canons passed in accordance with it are treated of.
ARTICLE VIII.
1848.
A Book of Common Prayer,
Administration of the Sacra
ments, and other rites and
ceremonies of the Church, ar
ticles of religion, and a form
and manner of making, or
daining, and consecrating Bi
shops, Priests, and Deacons,
when established by this or a
future G-eneral Convention,
shall be used in the Protest
ant Episcopal Church in those
dioceses which shall have
adopted this constitution.
No alteration shall be
made in the Book of Common
Prayer, or other offices of the
Church, or the articles of re
ligion, unless the same shall
be proposed in one General
Convention, and by a resolve
thereof made known to the
convention of every diocese,
and adopted in the subsequent
General Convention.
ARTICLE VIII.
(1789.)
A Book of Common Prayer,
Administration of the Sacra
ments, and other rites and
ceremonies of the Church, ar
ticles of religion, and a form
and manner of making, or
daining, and consecrating Bi
shops, Priests, and Deacons,
when established by this or a
future General Convention,
shall be used in the Protest
ant Episcopal Church in those
states which shall have adopt
ed this Constitution.
168 CONSTITUTION OF THE CHURCH
The second paragraph of this article was adopted by the
General Convention of 1811, but without the words, " or the
articles of religion." These were introduced in 1829. —
Journals 1811, p. 274; do. of 1829, p. 23-27.
THE BOOK OF COMMON PRAYER.
The reformation for the people and the purity of the
Church, can scarcely be said to have commenced until the
reign of Edward the Sixth. That for the king. Henry the
Eighth, was accomplished, when he had superseded the Pope,
and plundered the monasteries. The statutes of the thirty-
five and thirty-eight years of his reign, concerning the Six
Articles, were parliamentary recognitions of gross pi pal er
rors. Some feeble attempts at framing a liturgy had been
made, but in general the Mass Book and Breviaries remained
in common use, with the exception of passages relating to the
Pope, or the office of Becket.1
Bat the true light of the Reformation arose in the reign of
the last of the Edwards, whom the historian and divine may
vie in honoring — of " that royal and godly child, the flower of
the Tudor name ; that serious and holy child, who walked
with Cranmer and Ridley, the fit associate for the Bishops
and future martyrs of the Church." In the first year of his
accession the statutes before referred to were repealed, and in
the second year, the act to provide for a Book of Common
Prayer was passed. "With some changes, made in the time of
Elizabeth, of James, and of Charles, that book was brought
to the Church of the colonies, and there* sustained the faith
and awakened the devotion of our forefathers ; with reve
rential hands was it modelled at the Revolution ; and with
sacred zeal has it been guarded since, and fidelity to it is the
safety of the Church.
By the fundamental articles of 1784, it was proposed that
1 GIBSON'S Codex, vol. i. p. 294.
AND THE GENERAL CONVENTION. 169
the Church should adhere to the Liturgy of the Church of
England, as far as should be consistent with the American
Revolution and the constitutions of the respective states.
In September, 1785, a committee was appointed to con
sider and report such alterations in the Liturgy as shall ren
der it consistent with the American Revolution and the
constitutions of the respective states, and such further
alterations as it may be advisable for this convention to
recommend.
The report having been made, was discussed through
several days, and on the 5th of October, 1785, it was resolved,
" that the Liturgy shall be used in this Church as accomo-
dated to the Revolution, agreeably to the alterations now
approved of and ratified by this convention." '
It appears that the committee reported, and the conven
tion acted separately, upon two branches of the resolution of
reference ; the one simply the alterations rendered necessary
by the revolution, the other the suggested alterations of
another character. The resolution before mentioned, of the 5th
of October, covered the first case. On the same day, both in
the morning and an evening session, the proposed alterations
were discussed, and it was resolved, " that such alterations
be proposed and recommended to the Protestant Episcopal
Church in the states from which there are deputies to this
convention." *
The fourth article of the G-eneral Ecclesiastical Constitu
tion of 1785 directed that the Book of Common Prayer, Ad
ministration of the Sacraments, &c., should be continued to
be used in the Church, as altered in a certain instrument in
writing, passed by their authority, entitled "Alterations of
the Liturgy of the Protestant Episcopal Church, in order to
render the same conformable to the American Revolution and
the constitutions of the respective states."
Bioren, 5-10. 8 Biorcn, p. 11.
170 CONSTITUTION OP THE CHURCH
As, however, this constitution required the ratification of
the states to be binding, they were at liberty to use the book or
not, as they thought proper.
The other branch of he alterations — those proposed to the
Church in the states — was made the subject of the ninth
article, declaring that they shall be used when ratified by the
conventions which had sent deputies to that General Con
vention.
In 1786 the letter of the archbishops and bishops of Eng
land was written, in which they say : " We cannot but be
extremely cautious, lest we should be the instruments of
establishing an ecclesiastical system which will be called a
branch of the Church of England, but afterwards may possibly
appear to have departed from it essentially, either in doctrine
or in discipline." l
On the 14th of June, 1786, the convention of New- York
resolved, that (out of respect to the English bishops, and be
cause the minds of the people are not yet sufficiently informed)
the consideration of the Book of Common Prayer, with the
proposed alterations, be deferred to a future day.2
The Church in Maryland had in effect approved of the
Book, desiring, however, some alterations, which she directed
her representatives to endeavor to obtain. The principal of
these was that of the Nicene Creed.3
In Virginia, the book as proposed was adopted in May,
1786, with the single exception of the rubric before the
communion service, which excluded evil livers from the
Sacraments.4
The Church in New- Jersey, met in Convention, in 1786,
and approved of all the political alterations in the Book of
Common Prayer, and disapproved of the other changes. In a
memorial to the General Convention they say, that they do
1 Bioren, p. 20. a -Journals, OnderdonV s ed. p. 9.
3 HACK'S Contr. &c., vol. 2, p. 307. 4 Ibid., vol. 1, p. 192.
AND THE GENERAL CONVENTION. 171
not question the right of every national Church to make such
alterations in the mode of public worship as upon mature con
sideration may be found expedient ; but they doubt the right
of any order or orders of men in an Episcopal Church, with
out a Bishop, to make alterations not warranted by immediate
necessity, especially such as not only go to the mode of its
worship, but also to its doctrines.
In the General Convention of June, 1786, the fourth arti
cle remained unchanged ; the ninth was altered so as to pro
vide that such book should be in use "till further provision
is made in this case by the first General Convention which
shall assemble with sufficient powers to ratify a Book of Com
mon Prayer for the Church in these states."
On the llth of October, 1786, an act of the General Con
vention was passed, reciting the articles of 1785, relating to
the Book of Common Prayer, &c., the proposed alterations
therein, the address to the Bishops of England, and their
answer; and declaring their steadfast resolution to maintain
the same essential articles of faith and discipline with the
Church of England ; and then proceeding to declare, " that,
in the creed, the words ' he descended into hell,' shall be and
continue a part of that creed," and that the Nicene creed
should be inserted,
Finally, in October, 1789, the Prayer Book was established
in th6 form in which it now exists.
In 1826, various alterations in the liturgy were proposed,
and by a vote of the Convention sent to the several Dioceses
for consideration.
The Convention of Connecticut unanimously resolved that
the alterations proposed were inexpedient, (Journal, 1829, p.
42.) That of Virginia instructed the delegates to oppose
them. I gather from an examination of the journals of New-
Jersey, that no action was taken in the Convention. One step
was taken there which deserves notice. The proposed altera-
172
CONSTITUTION OF THE CHURCH
tions were directed to be read by every clergyman to his con
gregation. (Journal, 1827, p. 24.
I have before observed, that the second paragraph of this
article was not adopted until 1811. It must have been sup
posed that the clause making the Prayer Book binding when
established by that or any future Convention, left it within the
power of a Convention to alter it at any meeting ; that the
ninth article was, indeed, superseded by this clause. It de
serves notice, also, that a majority of the Dioceses in union is
not in terms required for alteration in the Prayer Book or
Articles, as is made necessary by the 9th Article as to general
alterations of the Constitution. This subject, however, and
the import of the clause, I propose to discuss under the ninth
article, to which I refer.
ARTICLE IX.
(1848.)
This Constitution shall be
unalterable, unless in General
Convention, by the Church, in
a majority of the Dioceses,
which may have adopted the
same ; and all alterations shall
be first proposed in one Gene
ral Convention, and made
known to the several Diocesan
Conventions, before they shall
be finally agreed to, or ratified
in the ensuing General Con
vention.
ARTICLE IX.
(1789.)
This Constitution shall be
unalterable, unless in General
Convention, by the Church,
in a majority of the States,
which may have adopted the
same ; and all alterations shall
be first proposed in one Gene
ral Convention, and • made
known to the several State
Conventions, before they shall
be finally agreed to, or ratified
in the ensuing General Con
vention.
The word States was changed into Dioceses in 1838.
I submit that this article may be thus analyzed :
1 BlORENj p. 41.
AND THE GENERAL CONVENTION. 173
1. The Constitution is unalterable, except by a majority
of the Churches in those Dioceses which have adopted it.
2. But the action and consent of such majority must be
expressed in General Convention.
3. This is carried into effect by a proposition being suggest
ed in one General Convention, and ratified in the succeeding
one.
4. That proposition must, in the interim, be made known
to the several Diocesan Conventions.
Dr. Hawks has written an able and elaborate note on this
article, and adopts the following conclusions :
1. That in all questions of constitutional or liturgical
changes, the vote in the House of Clerical and Lay Deputies
must be taken by Dioceses.
2. That any Diocesan Convention has a right to make
known its opinion of the proposed change in the General
Convention.
3. That the assent of a Diocese to a proposed change is to
be presumed in General Convention, if it is silent, or has
adopted no mode of making known its dissent.
4. If a majority of the Diocesan Conventions do make
known their dissent to any change, the General Convention
ought not, against such expression of dissent, to alter the
Constitution.
It may also be a legitimate consequence of these positions,
that the assent of a majority of the Diocesan Conventions
shall control.
I have the misfortune to differ from the learned annotator
upon the chief part of these propositions.
In the first place, the Diocesan Conventions are nowhere
referred to as called upon to act, and the change made depen
dent upon their assent. The provision seems very clear that
the majority of the Dioceses represented and acting in Gene
ral Convention, are exclusively clothed with the power. Had
12
174 CONSTITUTION OF THE CHURCH
the intention been such as is supposed, explicit language would
have been used. An analogous clause in the Constitution of
the United States was before them, and would have averted
doubt. The ratification of three-fourths of the Legislatures
of the States is required in terms. The power to propose the
change is admittedly in the Convention — the power to finally
ratify it is in the same body. What restriction is there upon
this authority? Merely the obligation to make the proposal
known to the Diocesan Conventions. This may be for the
purposes of consultation, of gathering views and information,
of instructions to delegates. But it cannot rob the General
Body of the ultimate and exclusive power of making or re
jecting the change.
Again : The error seems to be this — in looking upon the
Diocesan Conventions as represented in the General Conven
tion, and the delegates as their representatives. But this is
not the case. The Church in each Diocese is the body repre
sented. The separate Convention is indeed the organ to
choose the delegates, but they become then the representatives
of the Church in the Diocese, as absolutely and independently
in the General Convention, as the deputies to the Diocesan
Convention are of the same Church in that.
If we consider various clauses of the Constitution and
many canons, it will be seen that it is throughout the Church
in the Diocese which is the body known in the Convention;
and that there is not any ju!*t reason for saying that its con
stituency is the Diocesan Conventions.
Thus, in the first article, the phrase is, "This Church in a
majority of the Dioceses which shall have adopted this Con
stitution shall be represented ;" in the second article, " The
Church in each Diocese shall be entitled to a representation of
both the clergy and laity." " The Church and the Diocese is
bound," where the Convention neglects to choose delegates.
By canon five, ij the Church in a Diocese^ desires the conse-
AND THE GENERAL CONVENTION, 175
cration of a Bishop, steps are to be taken, &c. In short, the
testimony is abundant that it is the Church, the aggregate of
its clergy anil laity, which is the true constituency.
The result appears t<» be clear. The Diocesan Conven
tions have, as such, no voice or standing in the General Con
vention. The Diocese speaks through its representatives, the
delegates. The General Convention can listen to no other
exponent of its will. The separate Convention has control
enough of a question submitted, by having the selection of
the delegates.
In other words, I read the article thus: The Church, by a
majority of the Dioceses acting in General Convention, may
alter the Constitution. Now the mode in which the Dioceses
act in Convention, is through their delegates. The delegates
then, and they alone, can alter.
Again, the question may be considered in two points of
view ; first, where a Diocese is not represented in General
Convention; and next, where it is; and in each instance,
several cases may occur. Thus if a Diocese is not repre
sented, and the Diocesan Convention has taken no action upon
a proposed change, it seems clear that the result must be the
same as if there was a representation and the vote was
adverse. There must be a majority of the Dioceses in union
to pass the measure. There are at present twenty-eight Dio
ceses. There must be fifteen to effect a change. This num
ber must assent. No matter (for the present view of the
cas.^) how that assent is expressed. In some manner it must
be uttered.
But Dr. Hawks in his third proposition says, that the
consent is to be presumed where the Diocesan Convention is
silent. This proposition at least seems to me wholly untena
ble. Even if his main principle is sound, and the Diocesan
Conventions are the actual bodies to pass upon the measure,
it cannot be, that a presumption shall answer the requisition
17G CONSTITUTION OF THE CHURCH
of a consent ; that other dioceses shall be bound by an as
sumption of acquiescence where a convention refuses to ex
press its judgment in any mode,
Again : — Suppose the diocese is not represented, and passes
a resolution of disagreement. This produces precisely the
same result as if it was silent. The change must have the
same number in its favor, whether one dioeese does nothing?
or votes hostilely. The resolution becomes immaterial.
And again : One other case may arise where there is no re
presentation — that of a Diocesan Convention sanctioning the
change by a formal resolution. Certainly it is in this case
that Dr. Hawks' theory possesses the most plausibility.
But here also it is submitted, that this resolution could
not be regarded, and that the vote of the diocese would be
lost. It appears to me that the Diocesan Convention is not
constituted for this purpose, and does not possess any power
in the matter. I revert to the proposition that it is the
Church of the diocese which is represented by the delegatesr
not the separate convention. The dioceses act through their
delegates in General Convention. The diocesan body has ex
hausted its authority when as the attorney of the true con
stituency, it has appointed those deputies. Yet it would not
necessarily follow, that if the General Convention accepted
this secondary evidence of the will of a diocese, where it was
not represented, it could at all regard it where it was.
But in the second place, the question is to be treated
where there is- a representation of the diocese.
If the Diocesan Convention has not acted upon the mea
sure, of course the delegates are the only exponents of the
will of the diocese. But suppose the convention passes a for
mal resolution of agreement or disagreement to the proposed
change, and the delegates vote in General Convention ad
versely to the resolution : — in this way is the point to be
tested and determined.
AND THE GENERAL CONVENTION. 177
The principles above asserted lead of course to the conclu
sion that the General Convention must admit the votes of the
delegates as decisive, and cannot regard the act of the partic-
ticular convention. They, and they only, must be considered
as the true representatives of the will of the diocese. They
are the actual agents of the Church in the dioceses, as a sub
stituted attorney under a power of substitution, is the true
attorney of the principal.
It deserves, however, much consideration that the course
of instructing delegates as to their votes upon a proposed al
teration has been exercised by the conventions. Thus, in
1793, as to the negative of the House of Bishops, the Virginia
Convention resolved, " that the deputies from the Protestant
Episcopal Church in this state be instructed to express the
highest disapprobation of this convention respecting the in
vesting of the House of Bishops with such negative." (Jour
nal, 1793, p. 60 ; 2 HAWKS.)
In New-York, in 1791, it was moved that the convention
do instruct their delegates to vote in favor of conferring the
power of a negative. But the clergy and laity being divided
the motion was lost.
In 1801 the Convention of New- York instructed their
delegates to oppose and vote against the proposed alteration
in the first article of the constitution, as respects the change
of the time of meeting, from three to five years. (Journal,
1801, p. 92.)
In New-Jersey, a resolution was passed by the convention
of 1795, " that the convention agree to vest the House of
Bishops with the aforesaid negative." (Journal, p. 60, 1795.)
In 1801, the convention of the -same diocese instructed the
delegates from the Church in that state to the next General
Convention, to agree to the alteration of the first article of
the Constitution. (Journal, 1801, p. 5.)
The Convention of Connecticut, in 1801, resolved, that
178 CONSTITUTION" OF THE CHURCH, ETC.
the delegates who shall represent this convention in General
Convention be requested to advocate an alteration of the con
stitution. (Journal, 1801, p. 27.)
That a suggestion or request to delegates may with pro
priety come from a Diocesan Convention is of course clear. It
is frequently done by way of suggestion to the General Con
vention. It might be done by any vestry. But that instruc
tions, if communicated to the General Convention, bind it to
observe them, in opposition to the vote of the delegates, seems
a wholly inadmissible proposition.
And upon the question of expediency there can be no
doubt. The delegates should not be sent trammelled with di
rections, necessarily the result of a less comprehensive and
matured consideration than will be had in the General Con
vention. They should be left free to think and decide for the
whole Church, and to profit by the light of other minds.
ARTICLE X.
Bishops for foreign countries, on due application therefrom,
may be consecrated, with the approbation of the Bishops of
this Church, or a majority of them, signified to the Presiding
Bishop ; he thereupon taking order for the same, and they
being satisfied that the person designated for the office has
been duly chosen and properly qualified. The order of conse
cration to be conformed, as nearly as may be in the judgment
of the Bishops, to the one used in this Church. Such Bishops,
so consecrated, shall not be eligible to the office of diocesan or
assistant Bishop in any diocese in the United States, nor be
entitled to a seat in the House of Bishops, nor exercise any
Episcopal authority in said states.
This article was adopted in 1844. At the same time,
Canon VII. was passed, and the article will be adverted to
when that canon is considered.
CHAPTER II.
OF THE CONSTITUTIONS AND CONVENTIONS OF
THE DIOCESES.
TITLE I.
GENERAL OBJECTS AND NATURE OP THE CONSTITUTIONS.
It is not proposed to enter into any minute detail of the
various provisions of the constitutions of the several dioceses ;
much less to state all their canonical regulations. But it will
be useful to exhibit under some leading heads the rules which
have been adopted for the establishment and conduct of con
ventions. Generally speaking, the constitutions are restricted
to enactments of this character, and I have stated them as
they exist in a large number of the dioceses ; sufficient at least
to indicate some principles which prevail in them all.
Thus the constitution of Virginia may be taken as the
representative of almost all the others, and its provisions are
found to be —
1. Those for the meeting, composition, mode of action, and
officers of the convention or officers of the diocese.
2. The method of electing a Bishop, and 3d, The mode of
altering the constitution. Every article, except the 5th and
12thj comes under the first class.
180 CONSTITUTIONS AND CONVENTIONS
Some general observations upon the nature of our diocesan
conventions may be useful. They represent the Episcopal
synods of former periods of the Church, but with powers ex
pressly defined. In the judgment of the author, it cannot be
doubted, that in the earliest ages, as soon as a system of dio
ceses was established, and the Bishop of each was restricted
to its limits, the power of legislation vested in him. The in
evitable course of events, as well as the principles on which
Episcopal authority rests, warrant this conclusion. At first,
a regulation must have been adopted to meet, or was suggest
ed by, a particular case. As similar instances occurred, and
the fitness of the former rule was proven, it was applied, until
it became the ordinary regulation, and as such wras known and
fixed in the Church. Doubtless this was the origin of those
" usages and institutions of churches," which we find adverted
to and recognized in provincial councils. In fact, the exercise
of judicial power did precede^ and was the source of legisla
tion. From several decisions grew up a general law, and this
was finally embodied and promulgated in a canon or institute.
But that originally the Bishop, in his diocese, was clothed with
the ultimate and exclusive power of government, and that
this involved all judicial and all legislative authority, seems
to the author the only doctrine consistent with the tenet of an
Apostolic Episcopacy.
At what period the clergy of the diocese were united in
council, as a senate, with the Bishop — and when they arose
from being mere advisers to coadjutors in the business of
legislation, my information is not sufficient to state. The
exercise of the judicial authority was restricted as early as
the council of Carthage, when a Bishop was prohibited from
hearing causes, without the presence of his clergy, and Igna
tius speaks of the clergy forming the Bishop's senate.
The author is aware of the strong opposition which has
been made to the position, and the necessary consequences of
OF THE DIOCESES. 181
the position he has stated, as to this original and exclusive
power. It is with unfeigned humility he expresses the opin
ion, which, after no little examination and thought, he has
formed, that this great and conservative doctrine is apostolic,
primitive, and clear — that every thing of limitation upon the
original jurisdiction of a Bishop has been self-imposed, or has
sprung from the laws of councils of superior authority, and to
which he was a party — that therefore in every case in which
there is no express enactment, or legitimate conclusion from
an enactment, to control it, the question is, where is the evi
dence of the surrender of the power to rule the Church ? If
none can be produced, we have the Bishop's primitive jurisdic
tion to resort to for guidance and direction — a power without
a shadow of claim to infallibility, but with an absolute claim
to obedience.
And if this doctrine had no higher demand upon our duti
ful assent, it would be recommended by the highest wisdom,
as prudent and expedient. The system of our Church govern
ment is as liberal and free as any system can be which pre
tends to preserve an element of discipline. With the checks
and restrictions in force — the watchfulness of clergy and
laity — the power of public opinion — all brought to bear upon
a Bishop, the imagination of his usurping authority and sub
stituting his will for the law, appears most visionary. On the
contrary, the danger may now be lurking among us of Epis
copal authority being injuriously weakened or contemned.1
1 In speaking of Provincial Councils, Bishop Kennet says — Diocesan
synods have a better title to antiquity. The Bishop of each diocese
had an original right to convene his own clergy, and with their advice
and consent, to ordain such rules and orders as were proper to declare
the doctrine, and regulate the discipline of their own body. (KENNET,
Ecc. Synods, vol. 2, 109.)
The Bishop shall in every year hold a synod in his diocese of his
clergy and abbots, and shall select other clerics and monks. (Dec. Pars.
1, Dist. 18, c. 16.
The following is the language of Van Espen, It plainly appears
182 CONSTITUTION'S AND CONVENTIONS
TITLE II.
MEMBERS OF CONVENTIONS, AND THEIR QUALIFICATIONS.
In order to class the members of the diocesan conventions
in the most summary manner, and to show any important dif-
that in the first ages of the Church, there were frequent conventions of
the Bishops with their respective clergy, as if in a senate. These as
semblies were called Presbyteries, which at this day are termed Dio
cesan Synods.
These meetings did not at first take place at any designate period ;
but whenever any important matters occurred, the Bishop convoked
his senate, that they might deliberate upon them together.
As to those who ought to assist at the synod, besides such as have
the cure of souls, it is to be ascertained not only from the canons, but
from the different customs of places."
Qui Dicecesanis sub sancta Carolo interfuerint ex ejus ad clerum
oratione in ejus Synodo XI. Dicecesani habita, colligere possumus — Ita
enim ad Synodum loquitur. " Quid agimus fratres? Synodum agi-
mus; et quid Synodi nomen importat? Congregationem significat,
atque conventum. Et quarum personarum ? Nempe adeo excellentium
et eminentium in sancta Ecclesia ; Episcopi videlicit, et membrorum
ei conjunctorum, Canonicorum Metropolitans hujus Ecclesire, tune
etiam aliarum, Prrepositorum, Parochorum, Sacerdotum, Clericorum."
It seems that the power of calling all the clergy to these conven
tions was made a subject of abuse by the imposition of fines and pen
alties for non-attendance. This was remedied by a decree of the
Council of Trent, admitting the clergy with cures, and some others, to
send deputies. This system also prevailed in England, as the prece
dents before cited will prove. (Ante p. 135, n.) (VAN ESPEN, Jur.
Ecc. Und. Pars. 1 Tit. 18, cap. 19.)
Again he says : — Porro constat undecim et amplius saecula univer-
sum clerum. jurisdiction! et regimini sui respectiva3 Episcopi fuisse
subjectum, nee unquam per ea tempora in questionem venisse, num.
clerici decretis Episcoporum in his quse morum et disciplines reforma-
tionem attinebant essent subject!, eisque obedire deberent; ideoque
nee ambigebatur quin clerici omnes etiam Synodorum Episcopalium
sanctionibus tenerentur iisque in omnibus se subjicere juberentur.
He proceeds to show how, in subsequent ages, monks and others
under the guidance of the Roman Pontiffs, asserted and attained ex
emption.
The following is the language of Calvin : — Sequitur altera pars dis
cipline quae ad clerum peculiariter pertinet. Ea canonibus continetur
quos sibi veteres Episcopi suoque ordini imposuerunt. Adj iciebantur,
OF THE DIOCESES. 163
ferences with the greatest brevity, I select an article of one of
the constitutions, (AVisconsin,) which is drawn np with much
perspicuity, and shall notice the correspondence or disagree
ment of others with it.
et pcenas quibus ipsa canonum authoritas sanciebatur, nequis eos im-
pune violaret. In hunc finem unicuique Episcopo committebatur cleri
sui gubernatio. ut secundum canones suos clericos regeret, ac in officio
retineret. (CALVIN'S Inst. Book 4. cap. 12. § 22.)
Reference may also be made to the REFORMATIO LEGUM. (De Eccle-
sia, cap. 18 — 23.) The following is one of the passges : — Decreta vero
illius et sententias vel in Synodo per ipsum, vel per Archidiaconum in
visitatione divulgatas, inferiores ministri ut validas et firmas retine-
bunt. Quod si quid in eis vel injustum vel absurd am contineri arbi-
trati fuerint, et ad Archiepiscopum deferent, cujus erit, ab Episcopo
constitutum decretum aut sententiam, vel confirmare vel emendare, ita
tamen ut qua parte ilia non correxerit Archiepiscopus. vigorem suum
et robur retineant.
The Lord Chancellor and the two Chief Justices of England, with
the Chief Baron, declared in Bird vs. Smith, (MooRY Rep. 723,) that at
the common law. every Bishop in his diocese, and the Archbishops in
convocation, could make canons to bind the clergy within the limits of
their jurisdiction.
It is true that Lord Hardwicke. in Middleton's case, denies this
position. But he probably does not advert to the qualification that
this was the rule at common law ; for I apprehend that it was the
statute of William the Conqueror, and then of Henry the Eighth, which
made the assent of the king necessary for the enactment of canons
merely relating to spiritual matter. (KENNET, Ecc. Synods, 2d, p. 254.)
With the qualification, that the Bishop must unite with his clergy in a
synod, the proposition of Bird vs. Smith, appears to be true.
The sixth chapter of the 4th book of SUAREZ de Legibus is very full
upon this subject. The struggle of the Romish writers is to reconcile
the admission of a divine origin for Episcopacy, with the doctrine that
all Bishops derive authority from the Pope. Many of them, and Suarez
among the number, concede, that they are the successors of the Apos
tles, and thus in some sense the source of their power is of a divine
nature, but always through the Pope, and in subordination to him. After
speaking of the superior power of the Pope. Suarez says: — ll Dicendum
igitur censeo, Episcopos habere potestatem legistivam in suis Dicecesibus
jure ordinario humano, fundato aliquo modo in divino.
Bishop Beveridge thus answers these advocates : ll I confess myself
utterly ignorant why or in what manner, a distinction should be drawn
between an Apostolic and a divine right ; and since the Apostles trans-
184 CONSTITUTIONS AND CONVENTIONS
The third article of this constitution, (1847,) " of the mem
bers of convention," provides as follows :
The convention shall be composed of clergy and laity. The
following clergymen shall be entitled to a seat in it : —
Every clergyman, canonically connected with the diocese,
and having charge of some parish within it ; or, officiating as
a missionary within its bounds ; or, having spiritual charge
as president, professor, tutor or instructor in some college,
academy, or seminary of learning, countenanced or constituted
by ecclesiastical authority ; or, being a chaplain in the navy
or army of the United States.
The lay members shall consist of not more than four dep
uties from each congregation in the diocese, in union with the
convention ; a certificate of whose appointment shall be signed
by either the minister of the parish, or one of the wardens, or
the clerk of the vestry, and laid before the convention before
his or their admission to a seat or vote.
The union of clergy and laity in our diocesan
§ 1. UNION OF
CLERGY synods prevails in every diocese. It was shown in
AND AITY. ^e £r^ chapf/er)that this was made a fundamental
principle in the organization of the General Convention. In
this wre differ from the convocations of the English and Scot
tish Church. Yet the principle which dictated it is found in
the English decisions exempting the laity from the obligation
of canons passed without their assent by representation, and
is sanctioned by no less an authority than that of Hooker. In
the Ecclesiastical Polity he says — "that in all societies, com
panies and corporations, what severally each shall be bound
unto must be, with all their assents ratified. As the laity
mitted the authority committed to them by Christ, to the Bishops,
their successors, there seems to us nothing more agreeable to reason,
nothing more necessary, than that this jurisdiction of Bishops over
Presbyters should be referred to a divine institution." (Lib. 2, cap.
1155 — is De Episcopis.)
OF THE DIOCESES. 185
should not hinder the clergy's jurisdiction, so neither is it
reason that the laity's rights should be abridged by the clergy.
(Book 8, p. 368, &o.)
And a trace of this principle is found in monarchial
governments. It was pointed out by Lord Hardwicke, in
Middleton's case,1 how the assent of the Emperor to Ecclesi
astical regulations bound the people ; and Van Espen states
the same rule.*
This provision as to clergymen canonically set
tled maybe said to be universal. The language ^
CLERGYMEN.
indeed varies in different dioceses. Thus in North
Carolina it is : " Each regularly ordained minister of either
order, being settled with a parochial charge in this state ;" in
Virginia, " the officiating ministers who now are or may here*
after be regularly and canonically elected in parishes or
churches in this state ;" in Pennsylvania, " being a settled
minister of some parish within the state ;" in New- Jersey,
" every Presbyter who has been duly instituted rector of any
Church in the diocese ;" and in New- York, " the officiating
ministers regularly admitted and settled in some church within
this state which is in " union with this convention."
In the year 1846, a full report was made to the conven
tion of Connecticut upon this subject. It came, it is pre
sumed, from the venerable Dr. Jarvis. It was proposed to
amend the constitution of that diocese by striking out the ex
isting sixth article, and substituting the following: " The Con
vention shall be composed of the Bishop, his clergy, and lay
deputies from the several churches of this diocese."
In the report it was urged, that all the clergy of the
Bishop without further qualification should be admitted to a
'Atkyns.
* [Tit. 20, ch. 4, 13.) Neque enim credunt Auctoritatcm Episcoporum
a,ut Ecclesiasticorum extenderet in his quce temporalia sunt laicis absque
regio consensu legemponunt. (Of Diocesan Synods, Tit. 20, ch. 4; 13.]
186 CONSTITUTIONS AND CONVENTIONS
seat. That this was according to the system of the early
Church, in which Presbyters sat and deliberated with the
Bishops in both consistorial and provincial councils and so as
to deacons, who were sometimes allowed to give their voice
in their own names. That the clergy sat not as representa
tives of parishes, or of seats of learning, or as missionaries,
but by virtue of their office. That the clergy of the Bishop
were those who had received orders from him, or his prede
cessors, unless under discipline which forfeited their right, or
they had been canoriically transferred ; and in like manner
all who by letters dimissory accepted by the Bishop, were
admitted under his jurisdiction.
This report was accepted, and the alterations were at first
adopted; but at the convention of 1847, the amendment was
rejected. (See Journals of those years.) It was renewed,
and again rejected in 1849.
The principle of this report is adopted in the constitution
of Missouri. By the third article every clergyman of the
Church canonically residing in the diocese, and not under
ecclesiastical censure, is a member of the Convention.
In the convention of New-York of 1845, the composition of
the convention both a» to clerical and lay members, was the
subject of much discussion, and several propositions. Among
them was one that the convention should be composed of all
presbyters and deacons canonically connected with the diocese,
and not under ecclesiastical censure, and of lay delegates, &c.
On the other side it was moved that the clauses admitting
missionaries, or professors, or instructors of youth should be
stricken out.
These propositions exhibit the extremes of opinion upon
this subject. On the one side, the mere fact of a canonical
connection with the diocese giving a right to every minister
to a seat ; on the other a connection with a parish being in
dispensable. The latter has been pressed with some very
OF THE DIOCESES. 187
plausible considerations; yet it seems to me both unjust and
unwise. It entirely destroys the principle of the primitive
Church, that its ministers as such form part of the Synodal
Council^ a principle deviated from in the qualifications imposed
upon those who have not a cure, but not overthrown. It
would rob a convention of the learning and talent of a class
of men fitted to supply that in which ordinarily the parochial
clergy may be found deficient; but above all, it tends to
weaken the clergy as a body in the convention, to impair their
independence, and to bring them under the control of the laity.
This I look upon as a great evil. The imagination of undue
priestly influence in our country is the wildest of fancies.
The fact is that the laity have almost absolute control over a
clergyman, and they sometimes use it most mercilessly. It
is within the power of one active, persevering, ill-minded man
to drive from a parish anyone however fit and conscientious;
and too often indeed is the wretched alternative presented to
the victim of some crude notion of churchrnanship, or some
hasty and cherished prejudice, of poverty or subserviency.
It will be seen that deacons are in general admitted to
seats as well as presbyters, if possessed of the prescribed
qualifications. In New-Jersey the regulation is different, and
I believe is not to be found in any other Constitution. By
the 4th article, it is provided, that rectors elect, and deacons
who belong to the diocese, and officiate statedly within it, are
also admitted to seats, and may express their opinion on all
subjects; but may neither vote, be appointed members of the
standing committee, nor be elected deputies to the General
Convention.
Missionaries within the diocese are entitled to a
§ 3. MlSPIONA-
seat by the provisions of every constitution which RIES
I have examined.
The ecclesiastical authority referred to in this § 4-
clause of the constitution of Wisconsin means no
188 CONSTITUTIONS AND CONVENTIONS
doubt that of the Church. A similar regulation exists in the
diocese of Missouri. The professor, &c., must be connected with
a college under the control of the Church. (Article 4, 1847.)
But in several other constitutions this qualification is not to
be found, neither in Connecticut, Western New-York, New-
York, or Maryland, where the clergyman may be a professor,
&c., of any institution of learning incorporated by law.
In Connecticut, however, the phrase in the constitution of
the diocese, " any seminary of learning constituted by eccle
siastical authority," is held to mean all schools and semina
ries established with the authority of the Bishop. (Journal,
1842, p. 13.)
Chaplains of the army or navy, being ministers
§ 5. CHAPLAINS J J '
OF ARMY AND °^ ^le Church^ are admitted to seats in Wiscon-
NAVY. sin, Maine, Florida, and (with certain restrictions
as to the time of residence) in Massachusetts.
There is a provision to be found in several of
§ 6. RESIDENCE.
the constitutions requiring a previous residence in
the diocese for a certain period. Thus in Pennsylvania, every
member must have been actually, as well as canonically,
resident within the state, for the period of twelve months pre
vious to the meeting of the convention, and for the same
period been engaged in performing the duties of his station.
An absence from the state on account of sickness, or an ab
sence not exceeding two calendar months in any one year,
with the written permission of the Bishop, or of the standing
committee in case of a vacancy, shall be taken in account in
computing the said residence.
In Connecticut the minister must have been actually, as
well as canonically, resident within the state for the space of
six calendar months next before the meeting of the conven
tion, and for the same period been employed in performing
the duties of his station, or must have been ca nonically in
stituted.
OF THE DIOCESES. 1S9
There is also a provision in many of the dio- ^ FORM-R
ceses relating to clergymen who have once been MEMBERS.
members. I cite the language of the 4th Article of Penn
sylvania as an example : <; Provided also that no clergyman of
advanced years or infirm health, who has been once entitled
to a seat in the convention, shall lose his right to a seat there
in by reason of his having ceased to have charge of a parish,
or to be in the service of a seminary of learning, or to be a
missionary as aforesaid." The provision in Connecticut is —
" Provided, however, that no clergyman, otherwise entitled to
a seat and vote in the convention, shall by reason of advanced
years, or infirm health, or temporary absence, be divested of
such privilege," And in Delaware — " No clergyman of ad
vanced years or infirm health, who has been once entitled to
a seat in the convention, shall lose his right thereto, by reason
of his having ceased from the active duties of his calling."
Under the Article in Pennsylvania, a case occurred in
1847 of the resignation of a clergyman of his parish charge on
account of ill health. He recovered, and asserted his right to
a seat in convention, without having formed any new con
nection with a parish, or being within either of the other
enumerated classes. He was admitted, but under a strong
minority report, taking the ground that the canon applied
only to the case of a continuance of the infirmity, not to place
one who was incompetent to a charge, in a better position
than other non-parochial clergymen, merely from his once
having been a member.
The case is thus provided for in New Jersey — " Clergy
men who have formerly been rectors in this diocese, but
having resigned their charges, remain in it, or return to it
after a period of absence, may also become, and shall here
after be considered as members of the convention in full
standing, provided all the instituted rectors present, and all
the congregations represented at the meeting when any such
13
190 CONSTITUTIONS AND CONVENTIONS
clergyman shall be proposed, give their votes in favor of
it."
In 1833-4, the Article was amended, so as to require only
a concurrence of two-thirds of the clergy entitled to vote, and
two-thirds of the congregation represented at the meeting.
The provision in Maryland is this — " No clergyman who
has once been entitled to a seat in convention shall lose his
right to a seat therein, by reason of his having ceased on ac
count of age or infirm health to have charge of a parish, or to
be in the service of a college, &c., or to be a missionary."
And by the first canon, " no clergyman shall be entitled to a
seat as an infirm clergyman, unless he shall produce a certifi
cate from some respectable physician that his state of health
unfits him for the active duties of the ministry, and there be
evidence that at the time his health became infirm, he was
entitled to a seat in the convention."
This provision shows that the decision in Pennsylvania
would not be the rule in Maryland.
8 8 LAY DELE- ^s *° ^e number of the lay delegates, the regu-
GATES. NUM- lations of the respective dioceses generally prescribe,
BER ANDQUALI- that there shall be one or more from each church or
"CATION* parish. This is the case, for example, in New- York,
"Western New-York, and New-Jersey.
In Virginia one delegate is to be chosen for each parish or
church ; but if there is more than one officiating minister, the
parish may send as many delegates as it has ministers. The
regulation in Maryland and Kentucky is similar.
In Wisconsin the number shall not exceed four ; in Ohio
and Mississippi three ; in Missouri one at least ; in Maine one
or more, not exceeding five ; and in Massachusetts any num
ber not exceeding three.
In Connecticut each parish is entitled to one delegate, and
if it consists of more than fifty families, to two. If any
parish be composed of two or more congregations, having a
OF THE DIOCESES. 191
corresponding number of church edifices, such parish shall be
entitled to a representation from each of such congregations.
In some of the Dioceses a lay delegate must be a commu
nicant of the Church. This is the case in Virginia and Ohio.
In South Carolina a resolution was adopted in 1841, re
spectfully recommending to the several churches in the diocese,
that in the election of delegates they should choose persons
who are regular communicants of the Church,
In New- York, in 1802, a resolution was proposed that no
lay delegates should be admitted to a seat in the Convention
unless they were communicants. The following was unani
mously adopted in its stead :
" That in the opinion of this convention the welfare and
prosperity of the Church require, and it is in itself proper and
right, that no lay delegates should be sent to this convention
but such as are communicants of the Church, and have been
so for at least one year previous to their appointment; and
that it is recommended to the several parties to adopt this
principle."
Considerable discussion took place upon the subject in the
convention of Pennsylvania, in 1847. A resolution to amend
the constitution had been submitted in 1846, so as to require
that the delegates should be communicants. After full con
sideration the proposition was negatived. The vote was 45
clergymen in favor, and 29 against it, and 34 laymen against
it and 18 in its favor.
The Bishop previous to giving his vote, which was in the
negative, gave some reasons for his course ; that he greatly de
sired the accomplishment of the object, bur thought that the
end was likely to be attained by means less stringent; that
the sudden and peremptory exclusion of mm-communicants
would leave some parishes without any representation — would
cast out several exemplary members — and would impair the
influence of pastors over many non-cornrnunioants who were
kept from the table rather by pious scruples than indifference.
192 CONSTITUTIONS AND CONVENTIONS
In the Convention of New- York, in 1848, a committee ap
pointed at the previous convention submitted an alteration of
the constitution, requiring the members to be communicants.
This was adopted by a vote of the clergy 76 to 35, and of the
laity 56 to 38. The amendment was laid over for the action
of the next convention.
In the Convention of 1849, the subject was largely and
thoroughly discussed, and the proposed amendment was lost
by a non-concurrence of orders.
By a clause of the 2d canon of New-York, no one can
be chosen a delegate from any church unless he is entitled
to vote for its wardens and vestrymen. The same is
the rule in Western New- York. (Canon 1, $ 2.) In Penn
sylvania he must have been for six months previous to the
election, a worshipper in the church or parish he is deputed to
represent. In Massachusetts he must be a stated worshipper
of the parish.
TITLE III.
EVIDENCE OF MEMBERSHIP.
The revised canon of 1848 of the Convention of
§ 1. LIST OF
CLERGY. New- York was prepared with great care by a
committee, and is as follows :
" It shall be the duty of the Bishop, or in case there be no
Bishop, or of his inability or disability to act, then of the
Standing Committee of the diocese, to prepare and submit to
the convention at its next session, a list of all the qualified
ministers of the Church, who at the time of the passage of
this canon are regularly admitted and settled in some church
within this diocese, which is in union with this convention,
specifying the names of the several churches in which they
are admitted or settled, which list shall be authenticated by
the Bishop or Standing Committee, and after having been
OF THE DIOCESES. 193
submitted to the convention, (which may correct the same if
inaccurate in any particular,) shall be recorded by the secre
tary of the convention in a book to be provided by him and
kept in accordance with the third section of the XXX. Canon
of the General Convention of 1832.
" And it is hereby declared that in all cases hereafter
arising of a contested right to a seat in the convention, of any
minister claiming by virtue of any admission or settlement
prior to the passage of this canon, the said list or record shall
be taken as presumptive evidence of the right of those whose
names shall appear thereon, and of the right of none others,
liable however to be rebutted by other evidence satisfactory to
the convention.
" § 2. The secretary of the convention shall record in the
book mentioned in the preceding section all certificates that
shall be transmitted to him in pursuance of said 2d section of
canon 30 of the General Convention of 1832. And in case of
a contested right to a seat in the convention of any clergy
man who shall have been elected to any church or parish in
the diocese after the passage of this canon, the evidence of
settlement shall consist in the said record, or in the produc
tion to the convention of the certificate required by the said
canon, together with a certificate of the Bishop, or of the
Standing Committee, of his or their being satisfied that the
person so chosen is a qualified minister of the Church. Which
certificate, if not previously recorded, shall thereupon be re
corded by the secretary in the aforesaid book.
" § 3. Every minister who may be received into this diocese
after the passage of this canon, shall procure from the Bishop,
or in case of his inability or disability to act, from a majority
of the clerical members of the Standing Committee duly con
vened, a certificate that he has been received into this diocese
in compliance with the canon of the General Convention.
And before he shall be entitled to a seat in the convention, he
194 CONSTITUTIONS AND CONVENTIONS
shall cause such certificate to be recorded by the secretary of
the convention in the book mentioned in the preceding sec
tion. And in case of the contested right to a seat in the con
vention of any minister who may be received into this diocese
after the adoption of this canon, the production of such re
cord, or of such certificate, shall be presumptive evidence of
regular admission — which certificate, if not previously re
corded, shall thereupon be recorded by the secretary in such
book.
" $ 4. In case of a contested right to a seat in the conven
tion of a clergyman claiming the right by virtue of being em
ployed as a missionary under the direction of this convention,
the evidence of such employment shall consist in the written
certificate of the Bishop ; or in case of a vacancy in the Epis
copate, or of the inability or disability of the Bishop, in the
written certificate of the chairman of the Missionary Com
mittee of the diocese.
" $ 5. In case of a contested right to a seat in the conven
tion of a clergyman claiming such right by virtue of his being
engaged as a professor, or instructor of youth in a college,
academy, or general seminary of learning, duly incorporated,
the evidence of his connection with such college, academy,
or seminary, shall consist in the written certificate of the
president or secretary of such corporation, that he is so em
ployed."
In a large number of the dioceses there is a provision
similar to that in Western New York, which is as follows : —
" The right of any clergyman of this diocese to a seat in the
convention shall, if disputed, be determined according to the
provisions of the third article of the constitution by the con
vention itself, whether his name be inserted in the list afore
said or omitted."
In these cases the list which is made out is of course only
prima facie evidence €>f a right to a seat, and presumptive
OF THE DIOCESES. 195
evidence that none but those included in it have a right. In
New- Jersey the rule is as follows : " On or before the day of
meeting of the convention, it shall be the duty of the Bishop,
or if there be no Bishop, of the president of the Standing Com
mittee, to give to the secretary of the convention a certified
list of the names of clergymen canonically resident in the dio
cese, specifying the instituted ministers and others entitled to
seats and votes in convention."
An article of the constitution defines who are to be entitled
to seats in the convention. In Wisconsin the first canon runs
thus : " On or before the first day of the meeting of the Con
vention it shall be the duty of the Bishop, or if there be no
Bishop, of the president of the Standing Committee, to give
to the secretary of the convention a certified list of the names
of clergymen canonically resident in the diocese, and entitled
to seats and votes in the convention." The ministers so enti
tled are enumerated in an article of the constitution.
In Connecticut, Canon XL provides, that " it shall be the
duty of the Bishop and Standing Committee, or in case of
vacancy in the Episcopate of the Standing Committee, pre
vious to the meeting of any annual convention, to prepare an
accurate list of the clergymen of this diocese entitled to seats
in the convention, agreeably to the existing constitution and
canons ; to be presented and read by the secretary before any
other business shall be transacted ; and this shall be the list
according to which the convention shall be organized."
Considerable discussion has at different times taken place
in New Jersey, as to the conclusive effect of the list made out
by the Bishop upon a question of a right to a seat. It has
been determined that it is final.
The phraseology of the rule in Connecticut may perhaps
settle the question in the same manner, upon the ground of ex
press enactment; although the right, I understand, is not
•claimed in that diocese, and the practice is otherwise. But
196 CONSTITUTIONS AND CONVENTIONS
in such cases as the provisions in New Jersey and Wisconsin
present, it wears a very different aspect. "When a Bishop
of a diocese becomes a party to a compact by which a con
vention shall be formed, to be composed of clergymen and
laymen, and in which the qualifications of those to be ad
mitted as members are stated, that assent involves an assent
that the convention shall judge of the possession of those
qualifications. There must be a positive enactment to avoid
this consequence. The provisions in the two dioceses named
do not amount to such enactment. The case is very distin
guishable from that elsewhere discussed, as to the right of a
Bishop, as presiding officer, upon questions of order. The
Bishops never relinquished the right of presidency. The con
stitutions always recognize, do not confer that right ; and
that right, it is considered, involves the right of determina
tion, where there is no different regulation. But here the
Bishop agrees to the establishment and composition of a body
to which, presumptively, the privilege attaches of deciding
upon its members' qualifications. There should be an express
denial of the power, or an express bestowal of it elsewhere, to
avoid this conclusion.
The first canon of Maryland (1847) provides for the evi
dence of a title to a seat with great precision.
1st. As to clergymen removing from another diocese into
Maryland, none can be admitted to a seat as having been
regularly and canonically elected into a parish or congrega
tion, unless it shall have been signified to the secretary of the
convention by the Bishop, or in case of a vacancy, by the
president of the Standing Committee, that he obtained from
him a certificate of his Episcopal ordination and religious
character, nor unless he shall have received from the vestry
and transmitted to the secretary the certificate required by
the 30th canon of the General Convention of 1832.
The certificate referred to in the first clause is that \vhieh
OF THE DIOCESES. 197
is directed to be furnished by the fifth canon of 1844, on a
removal from one diocese to another.
2d. In the case of a clergyman canomcally resident in the
diocese, and elected into a parish or separate congregation,
he shall immediately after his acceptance of the appointment
transmit to the Bishop a certificate from the wardens and
vestry of his election.
The 30th canon of 1832 requires the vestry to deliver
this certificate, and it is to be transmitted to the secretary of
the convention. The canon of Maryland makes it the duty
of the minister to cause it to be done.
3d. A clergyman claiming a seat in the convention as an
instructor of youth in any seminary of learning, must pro
duce a certificate from the rector and vestry, and if there be
no rector, from the vestry of the parish in which it is situated,
or of some separate congregation within such parish acknow
ledged as such by the convention, that he is so occupied.
4th. No clergyman shall be entitled to a seat as an infirm
clergyman, unless he shall produce a certificate from some
respectable physician that his state of health unfits him for
the active duties of the ministry, and there be evidence that
at the time his health became infirm, he was entitled to a
seat in the convention.
By canon 13 of the Diocese of Pennsylvania, g 2. EVIDENCE
the appointment of lay deputies shall be certified OF LAY-MEM-
in writing by a warden and two vestrymen of the BERSHIP<
proper church, and the certificate shall state that the deputy,
or each of the deputies named in it (if the certificate is for
more than one) is, and has been for not less than six months
before the time of his election, a worshipper of the Church or
parish he is deputed to represent ; and no other certificate or
evidence of the appointment of any lay deputy or deputies
to the convention shall be allowed or received.
In Massachusetts a certificate of the appointment of a
198 CONSTITUTIONS AND CONVENTIONS
lay delegate must be signed by the wardens or parish clerk,
and laid before the convention. He must be a stated wor
shipper in the parish which he represents.
In Kentucky the delegate must exhibit to the convention
a certificate signed by the rector, or the secretary of the
vestry, or by one of the wardens, certifying that at a regular
meeting of the vestry of Church, held, &c., he was ap
pointed a lay delegate to represent the same in the conven
tion to be holden on, &c.
In Ohio the regulation is the same.
In New- York, by the canon of 1848, the evidence of
the appointment of a lay delegate, if made by the vestry,
shall consist in a written certificate, signed both by the rector
of the church, if there be one, or if there be no rector, then by
the warden who presides at the meeting at which such dele
gate is appointed, and by the clerk of the vestry. If the ap
pointment be made by the congregation, the evidence of such
appointment shall consist in a certificate, signed by the same
persons who are required by law to attest the election of
wardens and vestrymen in the respective parishes. Every
certificate of the appointment of a lay delegate shall show
upon its face, that the appointment has been made in pursu
ance of all the requirements of the section ; and shall certify
that the delegate has the qualifications required by the third
article of the Constitution, and by the succeeding section of
the canon. And no other certificate or evidence of the ap
pointment of any lay delegate than such as herein is required
shall be allowed or received.
The section referred to in the preceding provision declares,
that no lay delegate shall be entitled to a seat in convention
unless he be entitled to vote for wardens and vestrymen of
the Church which he is appointed to represent.
The Committee of New- York, to which was referred in
1845 the list of the clergy and credentials of the lay delegates,
OF THE DIOCESES. 199
reported, that with the exception of some eight or ten, there were
none which might not be excepted to as insufficient in some
particulars ; very few showed upon their face the authority by
which the appointment was made, the qualification of the
delegate, and the official station of the presiding officer. In
many cases, the appointment is stated to have been " at a
meeting of the wardens and vestrymen." Such meeting is not
necessarily a vestry meeting, nor does it necessarily appear
that the appointment by such a meeting is an appointment
by the vestry. The official title of clerk is one recognized
and prescribed by the laws of the state as well as by the
canon. The title of secretary is sometimes used. The secre
tary of a meeting of wardens and vestrymen may be a differ
ent person from " the clerk of the vestry," and the canon
designates the latter as a returning officer.
These irregularities, it will be seen, were corrected by the
canon adopted in 1848.
There are some differences in the dioceses as to § 3. MODE OF
the mode of electing delegates, and the body from CHOOSING LAY
which they are to be taken. DELEGATES.
In Louisiana they are chosen by the vestry ; in Kentucky by
the vestry from the congregation ; (Canon 3,) in Missouri they
are to be elected by the vestry or congregation, without specify
ing from what class ; (Art. 4, Const.,) in Ohio by the vestry
from among the communicants of the church or congregation to
be represented. The provision in Florida is like that in Mis
souri — the delegates are to be chosen by the vestry or con
gregation. The canon of South Carolina provides that lay
delegates shall be elected by the respective Episcopal churches
from among the members of those churches, to be elected in
such manner and time as each church shall deem proper.
(Const. Art. 3, § 4 ; Jour. 1847.)
In Delaware they are chosen by the vestry, and if there is
no vestry, by the congregation ; and the regulation in Maryland
is the same. (Constitution, Art. 2.)
200 CONSTITUTIONS AND CONVENTIONS
In New-York, by Canon of 1848, § 6, the appointment of
lay delegates to the convention, if they be chosen by the vestry
of any church, shall be made at a regular meeting of such
vestry held according to law : if they be chosen by the con
gregation, the like notice of the time and place of holding the
election shall be previously given, and the electors must have
the like legal qualifications, and the election shall be conducted
in the like manner, as prescribed by law for the election of
wardens and vestrymen of the parishes respectively in which
they are held.
It will be observed that by the constitution of New-York,
the lay delegates are to be chosen by the vestry or congre
gation.
By a canon of the same diocese a certificate of the incorpo
ration of the church under a statute of the state is necessary
to be produced in order to a union with the convention ; and
by the same act wardens and vestrymen must be chosen upon
incorporating a church. Again, the statute requires that the
rector, if there is one, and a majority of the vestrymen, be
present for the transaction of business.
The congregation may then be called upon to appoint dele
gates, when from a vacancy, the vestry cannot be lawfully con
vened ; but it is not perceived in what other cases this power
could be exercised by it.
TITLE IV. .
OFFICERS AND COMMITTEES OF CONVENTIONS.
§ i. PRESIDING By the 5th article of the constitution of New-
OFFICER— HIS York, the Bishop shall preside in the convention ;
UTHORITY kuj. -n cage o£ a vacancVj or necessary absence, the
AND DUTIES.
members shall elect a president from among the
clergy. In South Carolina the Bishop of the diocese shall be
ex-officio president of the convention, but in case of his ab-
OP THE DIOCESES. 201
sence or a vacancy in the Episcopate, the president of the
Standing Committee shall be the president ; and if he be not
present, a presiding officer shall be elected from among the
attending presbyters. In Delaware the Bishop and Assistant
Bishop, where there is one, whether belonging to the diocese,
or having charge of it provisionally, shall have a seat and vote
in the convention, and one of them shall preside. If there be
none, the convention shall elect for its president one of the
presbyters attending. (Journal, Delaware, 1844.)
By the 2d article of the constitution of Kentucky, " the
Bishop, clergy and representatives of the laity of the Church
shall meet in convention." By the 4th article, " the Bishop,
with such clergymen and lay delegates as shall at any time
be duly assembled, shall constitute a quorum." By the 6th
article, in case of vacancy of the Episcopate, or of the absence
of the Bishop, the convention shall elect a president pro tern.
by ballot, from among the presbyters.
In Connecticut, the 4th article of the constitution provides,
" that the Bishop shall preside in convention ; but in case of
absence or vacancy in the Episcopate the convention shall elect
a president pro tern." (Journal, 1847.)
The 5th article of the convention of Massachusetts, is,
" that the Bishop shall preside in the convention ; but in case
of vacancy or necessary absence the members shall elect a
president from among the clergy." (1847.) The 5th article
of the constitution of Pennsylvania, and of Western New-
York, and the provisions in Maine are substantially the same.
(Journals, 1847.)
In Maryland the regulation is this : (Article 6, Constitu
tion, Journal, 1847.) " The Bishop of the Church in this
state shall be president of the convention. In case of a
vacancy or absence, the convention shall choose by joint ballot
a president from among the order of priests." In New- Jersey,
the Bishop of the diocese shall have a seat and a vote in the
202 CONSTITUTIONS AND CONVENTIONS
convention, and shall preside at all its meetings. The Assistant
Bishop, when there is one, shall have a seat and a vote, and
in the absence of the Bishop shall preside. In case of a
vacancy in the Episcopate, or of the absence of the Bishop,
and of the Assistant Bishop, the members shall elect a presi
dent from among the instituted ministers. In Virginia, by
the 6th and 7th articles, " the Bishop shall be the president
of the convention ; in case of a vacancy the convention shall
choose a president from among the order of priests." (Jour
nal, 1835.)
These examples will suffice to show the general nature of
the provisions in the dioceses.
The right of a Bishop to preside in the council of his dio
cese is a fundamental law of the Church, and would exist
without any provision to that effect. These provisions are
but declaratory of the right. In Kentucky the right is
assumed, not declared ; and in Virginia, it was recognized at
a time when the power of a Bishop was narrowly restricted.
By the llth rule of order of 1785, the privilege of presiding
in ecclesiastical assemblies was expressly admitted. This
article remained until 1793, wrhen the regulation was adopted
in the form in which it now stands. }
In a few of the dioceses there are some special regulations
which require notice. In Delaware, the Bishop may at the
close of the debate, and before a vote is taken, at his discretion
express an opinion upon the subject. (Art. 5.) In South
Carolina the Bishop or assistant Bishop, if there is one, is de
clared to be ex officio a member of the convention, with a
right to vote on all matters requiring the suffrages thereof.
By the 4th article of the constitution of Wisconsin, the
Bishop, or the Bishop in charge of the diocese, shall ex officio
preside in convention and be entitled to vote on all questions.
By the 6th article of Maryland the Bishop shall be presi-
1 Journals, 1785.
OF THE DIOCESES. 203
dent of the convention. He may make any motion which he
shall judge conducive to the good of the Church, but shall not
enter into debate ; and he may deliver his sentiments on any
subject after it has been discussed before a vote thereon. He
has a vote upon all questions. By the 4th article of the con
stitution of Pennsylvania, the Bishop and Assistant Bishop, if
there be one, shall have a seat and vote in convention. In
Louisiana the Bishop or president is entitled to a casting
vote.
It is to be noticed that all these declarations in the consti
tutions of the dioceses are merely declaratory of an inherent
right, and do not create it. It would be an anomaly — it would
not be a convention of an Episcopal Church, in which a Bishop
was not recognized as entitled to preside and vote without a
positive enactment. But the right which existed in former
ages of a full negative upon the act of any diocesan synod or
council, has been by the consent of the Bishops of our Church
in almost all the dioceses, renounced.
I know of but one partial exception to this. By the con
stitution of Kentucky, (Article 8,) should the Bishop express
his disapprobation of any canon regulation or resolution, it
shall be returned to the convention for reconsideration, when
a majority of two-thirds of both orders shall be necessary for
its adoption. The same was the regulation in Missouri ; (Art.
8, Const, in 1843,) but it is changed as appears in the consti
tution printed in the Journal of 1847.
In the larger number of the dioceses the power
POWER ON
QUESTIONS OF of the Bishop as presiding officer upon questions of
OEDER. orc[er nas been specially regulated. Thus by the
15th rule of order of Maryland; "all questions of order shall
be decided by the president. There shall be a right of appeal
from the decision of the presiding officer to the convention."
In 1844, a resolution was offered that the name and style
of all official signatures upon the Journals of the Convention
204 CONSTITUTIONS AND CONVENTIONS
should be in accordance with the constitutional and legal name
of the Ch'urch, which is that of the Protestant Episcopal
Church in Maryland.
The Bishop declared the resolution to be out of order, as
pertaining to a matter not within the cognizance of the con
vention, to wit, the official signature of the Bishop. An ap
peal was taken, and the decision sustained.
The usual official signature is, I believe, " W. M. W.,
Bishop of Maryland."
A similar provision to that in Maryland, viz., a right to
decide questions of order with a right of appeal to the conven
tion, is in force in New Hampshire, (Rule 3, 1847,) Missouri,
(Rule 12,) South Carolina, (Rule 22,) Virginia, (Rule — ,)
Massachusetts, (Rule 9, 1847,) Rhode Island, (Rule 7, 1847,)
Kentucky, (Rule 13,) and Indiana, (Rule 17, 1847.)
In South Carolina, in the Convention of 1844, the Bishop
refused to receive certain resolutions offered to the House.
The question of reception was demanded and carried in the
affirmative. The Bishop then stated that he desired to be
considered absent, and called the president of the Standing
Committee to the chair. The resolutions were read, and by
a vote of the convention laid upon the table. (Journal 1844,
page 38.)
The rule in Louisiana is, that the Bishop shall have all
the powers of presiding officers in deliberative assemblies to
preserve order and decorum, and shall decide all questions of
order subject to an appeal to the house. (Rule of Order,
1844.) The provision in Western New- York is in the same
terms. (Canon 2, § 3, 1847.)
In New Jersey the Rule of Order is — " in any controversy
respecting order, the president shall decide." (Rule 5, Jour
nal 1847.)
Under this rule the Bishop of New Jersey exercises the
right of decision without appeal, and attempts have been
OF THE DIOCESES. . 205
repeatedly made to vary it by inserting a clause giving
the right. The argument has been, that the convention is
the creature of the constitution, and that its proceedings and
officers ought to be controlled by the constitution or its own
authority and the usages of deliberative bodies. In the con
vention of 1849 the subject was renewed, and there was a
failure of a concurrent vote, the laity by a considerable ma
jority favoring the change in the rule.
There are a number of dioceses in which this question
would arise in its naked form. Thus, in Georgia, North
Carolina, Delaware, Connecticut, Florida, Michigan, and
Wisconsin, down to 1847, there was no specific rule upon the
point, the Bishop in each being of course the presiding officer,
and being usually declared to be such ex officio.
In these cases it is submitted, that the power of the
Bishop is final. It was before observed that the right of pre
siding essentially attaches to his office ; that there could not
be a diocesan convention without the Bishop at its head.
Where there is one, that right involves the right of deter
mining questions of order, both because it belonged to Bish
ops as the heads of synods before, and upon general principles.
That power, therefore, must be restricted by express regula
tion, to which the Bishop is a party. The expediency of giving
an appeal to the convention is a different question, on which but
little difference of opinion exists, at least among laymen ; and
it has received the sanction of the larger part of the dioceses.
Another officer provided for in the several con
stitutions is a secretary. The 5th article of the § *' SKCRE"
constitution of Kentucky, for example, provides : CONVFNTION
1. "A Secretary shall be chosen upon the assem
bling of the annual convention from the members thereof, by
ballot, after viva voce nomination of candidates. In case but
one is nominated, the balloting shall be dispensed with."
14
206 CONSTITUTIONS AND CONVENTIONS
2. " The duty of the secretary shall be to take minutes of the
proceedings of convention, to preserve the journals and records,
to attest the public acts of the convention, to perform such
other duties as shall be assigned to him by this constitution,
or by canon made under its authority ; and faithfully to de
liver into the hands of his successor, all books and papers
relative to the concerns of the convention which may be in his
possession." (Const. 1847, Art. 3.)
This is an outline of the provisions of the other dioceses
as to this officer. There are, however, additional regulations
in some, deserving of notice.
In New- York the secretary is to remain in office until the
meeting of the next convention. He is also to give due notice
to each minister and vestry of the meeting of the succeeding
convention ; (Constitution, Art. 6,) and by the 5th Canon it is
declared that he shall be chosen by ballot after viva voce nomi
nations of the candidates, and shall continue in office until a
new election is made.
§ 2. He shall transmit annually to each of the Bishops of
the Protestant Episcopal Church in the United States, and to
the secretary of the last House of Clerical and Lay Deputies in
the General Convention, and to the secretary of every Diocesan
Convention, a copy of the Journal of the Convention ; and
shall request the last to send copies of their respective jour
nals in exchange.
§ 3. He shall also transmit to every General Convention,
(in addition to the documents mentioned in the 3d section of
the 7th canon of the General Convention of 1835 — Canon 8
of 1841,) a certificate to be^signed by himself, containing a
list of the clergymen in this diocese, and the amount of funds
paid or secured to be paid (distinguishing them) to the Gene
ral Theological Seminary, together with the nomination of
trustees of that seminary, and also a like certificate of the
appointment of clerical and lay deputies.
OF THE DIOCESES. 207
§4. Any expense incurred by a compliance with the third
section of this canon shall be paid out of the diocesan fund.
§ 5. Whenever there shall be a vacancy in the office of
secretary of the convention, the duties thereof shall devolve
upon the assistant secretary if there be one ; if not, upon
the secretary of the Standing Committee.
The secretary is also directed by Canon 3 of the diocese
of New- York, to give notice of the time and place of a meet
ing of any convention by an advertisement signed by him,
and published in three of the public papers, or Church journals
printed in the diocese of New- York. When a special Con
vention is called for any particular purpose, the notice must
specify such purpose. By the 8th section of the Canon of
September, 1848, it is made his duty to transmit a copy of
the 6th and 7th sections of that canon, together with blank
printed forms of a certificate of the appointment of lay dele
gates to every church in the diocese in union with the con
vention, in the same manner with the notice, which by the
constitution he is or may be required to give of the time and
place appointed for the meeting of the succeeding convention.
The 3d article of the constitution requires him to give notice
to each minister and vestry of the time and place appointed.
§ 3. TREAS-
The 6th canon of New- York provides as follows :
§ 1. At every stated convention, there shall be chosen by
ballot a treasurer of the convention, who shall remain in of
fice until the next stated convention, and until a successor is
appointed. It shall be his duty to receive and disburse all
monies collected under the authority of the convention, and of
which the collection and distribution shall not be otherwise
regulated.
§ 2. His accounts shall be rendered annually to the con
vention, and shall be examined by a committee acting under
its authority.
208 CONSTITUTIONS AND CONVENTIONS
$ 3. In case of a vacancy in the office of Treasurer, it shall
be supplied by an appointment to be made by the Standing
Committee ; and the person so appointed shall continue to
act until an appointment is made by the convention.
The 8th canon of the diocese of Illinois, and the 12th of
Ohio, are the same in substance.
The 10th canon of Missouri, in addition to the powers and
duties above mentioned, declares, that the treasurer shall be
subject to the direction of the Standing Committee in rela
tion to the mode and place of depositing the funds received
by him, and the mode of paying them out, and his accounts
and books shall rfbe at all times subject to the inspection
of the Standing Committee, or any member thereof. Before
entering on the duties of his office he shall give a bond to the
Standing Committee, in such penalty and with such surety as
they shall direct, conditioned for the faithful performance of his
duties, and for delivery over to his successor of all funds, se
curities, books and papers pertaining to his office.
[CANON IV., General Convention, 1832.]
§ 4. STANDING § !• ^n every diocese there shall be a Standing
COMMITTEES. Committee, to be appointed by a convention
thereof, whose duties, except so far as provided for by
the canons of the General Convention, shall be prescribed by
the canons of the respective dioceses. They shall elect
from their own body a president and secretary. They may
meet on their own adjournment from time to time ; and the
president shall have power to summon special meetings when
ever he shall deem it necessary.
; § 2. In every diocese where there is a Bishop, the Stand
ing Committee shall be a council of advice to the Bishop.
They shall be summoned on the requisition of the Bishop
whenever he shall wish for their advice : and they may meet
of their own accord, and agreeably to their own rules, when
they may be disposed to advise the Bishop.
OF THE DIOCESES. 209
§ 3. Where there is no Bishop, the Standing Committee
is the ecclesiastical authority for all purposes declared in
these canons.
The first provision was the seventh canon of July, 1789,
directing that in every state in which there is no Standing
Committee, such committee should be appointed at its next
ensuing convention. The canon of 1795 was the same. The
4th and 24th canon of 1808 comprised the same regulations
as the first two sections of the present canon, except the
clause prescribing the duties of the committee.
In the first ages of the Church, the presbyters
who had a cure of souls constituted as it were but
one body, and formed, together with the Bishop, a senate.
Ignatius calls this body the Sacred Consistory, the counsel
lors and assessors of the Bishop. " We have in the Church,"
says Hieoronymus, " our senate, the assembly of presbyters."
But as the number of presbyters and clergymen largely
increased, the Bishops began to choose from the clergy cer
tain persons by whose council and advice they might govern
the diocese, and these were called the cathedral canons, as
attached particularly to the Episcopal cathedrals, and their
assembly was called the Cathedral Chapter.1
The power of the chapter was in its origin and institution
entirely subordinate to that of the Bishop.'2 When Cyprian
writes, that from the commencement of his Episcopate he
had determined to do nothing without the counsel of the
clergy and consent of the people, (sine consensu plebis,) it is
1 VAN ESPEN, Jar. Eccl Un., Pars. 1, Tit. 8, cap. 1 ; Tome 1, p. 42.
See also SUAREZ' De Legibus, Lib. 4, cap. 6.
* Totius cleri Episcopum caput esse, eique prcecipuam agendorum in
sua DicBcesi curam incumbere indubitatum est. (Ibid. cap. 2.) Sine
Episcopo nemo quidquam facial eorum quae ad Ecclesiam spectant.
210 CONSTITUTIONS AND CONVENTIONS
obvious that this was a voluntary restriction upon his un
questionable power.
Some limitations are also to be found in the provisions of
General Councils. These were generally binding. Of this
nature, particularly, was the provision for the concurrence of
the chapter in the trial and decision of causes. Van Bspen
refers to that of the Council of Carthage — Ut Episcopus nul-
lius causam audiat absque presmtia suorum clericorum.
The Popes also imposed other trammels, in pursuance of
their design of breaking down the independence and authority
of the Bishops. Pope Alexander the Third forbade the institu
tion or dismissal of abbots and other ecclesiastical persons,
without the assent of the chapter.
The modern doctrine was well expressed in a decree of
Cardinal Pole. (De Ref. Cleri. Anglicani.) " Canonicatuum
et Prcebendarum instituendi et rationem et causam hanc
fuisse, utqui ad eas assumunlur Episcopo assist ant , eumque
in muneris sui functionis consilio et opera adjuvent, in divi-
nis celebrandis Ecclesice inserviant"
The description of a chapter in the English law is this :
"A chapter of a cathedral church consists of persons eccle
siastical, canons, and prebendaries, whereof the Dean is chief,
all subordinate to the Bishop, to whom they are as assistants
in matters relating to the Church, for the better ordering and
disposing the things thereof, &o., and they are termed by the
canonists, capitulum, being a kind of head instituted not only
to assist the Bishop in manner aforesaid, but also anciently to
rule and govern the diocese in time of vacation. The Dean
and chapter is a body corporate spiritual, consisting of many
able persons in law, viz., the Dean, who is chief, and his pre
bendaries ; and they together make the corporation. They
were originally selected from among the clergy by the Bishop,
as counsel and assistants to him/'1
1 GODOL. 56, 58. 2 Roll abd. 451. BUNBURY Exch. Rep. 209.
OF THE DIOCESES. 211
It appears that by the concession, or weak acquiescence of
Bishops, the chapter in many cases stepped beyond the natu
ral and legitimate functions of its office, and exercised au
thority and claimed exemptions inconsistent with a canonical
subordination. The nature and extent of these encroach
ments will be found in BURNS' Eccl. Laws, vol. 2, p. 93, and
the authorities there cited.1
I have not found that during the colonial period any com
mittee of this character was in existence, except that in Con
necticut in 1776, (June 4,) there was a committee of five
clergymen appointed by a convention. In the acts of the
commissaries, and perhaps in the voluntary regulations of the
clergy in conventions, is to be found whatever of internal,
positive ordinance was enacted for the Church.2
But after the Revolution, and at the period of the adop
tion of the canons of 1789, a body called a Standing Com
mittee is to be found in several of the states.
In Yirginia, for example, by one of the rules and orders for
the government of the Church, passed in May, 1785, a Stand
ing Committee was appointed. It was to consist of four
members, and by a resolution of the convention three clergy-
men and one layman were appointed. Its powers were con
siderable — among others, to receive complaints against the
clergy and direct courts of examination.*
In Maryland, in 1788, a Standing Committee, composed
of five clergymen and five layman, was established for each
shore ; and all matters of government and discipline during
the recess of the convention were assigned to them.
And in New- York, in 1787, a committee was appointed
to call a special convention should the Episcopate become
1 1 BURROW'S Rep. 567. ROLLS. Abr . 229.
2HA.wKs' Contr. vol. 2, p. 170, and Appendix, p. 501. Soms notices
of the convocations are to be found in ChanJler's Life of Johnson.
J HAWKS, vol. 1, 303.
212 CONSTITUTIONS AND CONVENTIONS
vacant, and by another resolution the same gentlemen were
to compose a standing committee, to advise with the Bishop
in all matters in which he might think proper to consult them.
There were three clergymen and three laymen appointed.1
This committee was continued the next year, and in 1790
there was a regular election of members, viz., four of each
order.2
These bodies then arose, in fact, from the necessities of
the Church, and were the organs of government, where there
was no Bishop, during the recess of the convention ; and this
may account for the 6th canon of 1789 appearing to refer to
them as already known in the Church system.3
It is believed, that, with the exception of Mary-
MEMBERS.
land and Connecticut, the standing committee of
every diocese is composed of clerical and lay members. It
appears, from the prefatory note to the edition of the journals
of Connecticut, published in 1842, that the first standing com
mittee was chosen by the convocation in October, 1790. No
convention was formed until 1792. The committee chosen in
1790 consisted of five clergymen. The constitution of 1792
provided for the appointment of a standing committee annu
ally. By the constitution at present in force, it is to consist
of five clerical members, who shall be rectors of parishes or
instructors of some seminary instituted by the ecclesiastical
or civil authority of the State.
In Maryland, by the 9th article of the constitution, a
standing committee, consisting of seven members, four on the
"Western and three on the Eastern shore, shall be chosen from
among the order of priests, by a joint ballot of clergy and
laity.
In general, the provision as to this committee is like that
1 Journal, 1787. 2 Ibid, 1790.
3 See a note of Dr. Hawks' Con. and Canons 102. and his quotation
from a pamphlet v/ritten by the present Bishop Hopkins.
OF THE DIOCESES. 213
of the diocese of New- York, which is as follows: — "At every
stated convention, an election of a standing committee shall
be made, which committee shall consist of four of the clergy
and four of the laity, to be chosen by ballot, and by the con
current vote of the members of each order." In New-Jersey
each order chooses its own members, by ballot, subject to the
approval of the other order. (Art. 10, Const. New-Jersey.)
By the regulation of most of the dioceses, the members
are equally divided between the two orders. Thus, in Ver
mont, there are three clergymen and three laymen. In Mis
souri, there are three presbyters and two laymen ; in North
Carolina, a majority must be clergymen ; in Delaware and
Kentucky, three clergymen and two laymen, and the presence
of two clergymen is necessary to form a quorum; and in
Florida there are to be five laymen and four clergymen.1
In the dioceses of Wisconsin, Illinois, North Carolina, and
South Carolina, the lay members must be communicants.
The powers and duties of a standing committee
arise from three sources : 1st, the delegation of a OWERS AND
DUTIES.
specmc duty or power by the general convention ;
2d, a general authority conferred by the same ; and, 3d, the
duties prescribed and authority given by the laws of the
respective dioceses.
1st. The Greneral Convention authorizes the committee to
elect a president and secretary from their own body ; to meet
on their own adjournment from time to time; to assemble at
special meetings upon the summons of the president ; and to
meet of their own accord when they may be disposed to advise
the Bishop. (Canon 4, 1832.) By the same canon, they may
be summoned, and are bound to meet, upon the requisition of
the Bishop, when he wishes their advice.
The numerous cases in which special duties are enjoined,
1 In the Convention of 1848, 1 find but three clergymen and five lay
men chosen.
214 CONSTITUTIONS AND CONVENTIONS
and powers are conferred, by the canons, are stated, under the
appropriate heads, in various portions of this work. Among
their important powers is that bestowed by the Canon 15 of
1832, (the substance of which was enacted in 1789,) by which
no person can be ordained a deacon or priest without testimo
nials from the committee.
2d. It is next to be noticed, that, by the third section of
the Canon of 1832, where there is no Bishop in a diocese, the
committee is the ecclesiastical authority for all purposes de
clared in the canons, that is, the canons of the General Con
vention.
This power is of much importance, and deserves special
notice. What are the purposes declared in the canons for
which the committee forms the ecclesiastical authority?
In 1841, a committee of both houses made a report upon
the subject, under a resolution referring it to them to define
the provision. They stated, that in Canon 4 of 1832, § 3,
which is, that where there is no Bishop, the standing com
mittee is the ecclesiastical authority for all purposes declared
in the canons, it is implied that the Bishop, where there is
one, is the ecclesiastical authority, unless otherwise declared
in a canon ; that in Canon 10 of 1832, the words, " or. other
ecclesiastical authority which may have the superintendence
of candidates for orders," mean the clerical members of the
standing committee, where there is no Bishop ; that in Canon
17 of 1832, " Of Deacons," it means the clerical members of
the committee, where there is not a Bishop; in Canon 19 of
1832, " Of the Titles of those who are to be Ordained Priests,"
the Bishop, or the standing committee at large, is intended ;
and that in Canon 23 of 1832, (now superseded by the 9th of
1844,) " Of Clergymen Ordained in Foreign Countries by
Bishops in Communion with this Church," was meant the
standing committee generally, when there was no Bishop.
This is the case under the^existing^canon.
OF THE DIOCESES. 215
The preceding expositions were adopted by the convention,
after which the subject was laid on the table.
The same committee also reported, that in Canon 33 of
1832, the phrase occurring twice meant the Bishop and the
clerical members of the standing committee. This canon
relates to the dissolution of the pastoral connection between
ministers and their congregations.
It is not seen how the phrase can, in this instance, be so
interpreted. The committee and the convention agree that,
by the phrase " ecclesiastical authority," the Bishop, where
there is one, is implied ; and, by the canon, the standing com
mittee generally is such authority, where there is not a Bishop.
The phrase, when used without qualification, certainly means
the Bishop, or standing committee proper.
In addition to the canon of the General Convention, there
is an express provision in several dioceses upon the powers of
the committee. In Pennsylvania, the 9th canon of 1829 is as
follows : " In case of a vacancy in the Episcopate, the powers
and duties to be performed by the Bishop, as regards disci
pline, except the pronouncing sentence of deposition, or de
gradation, shall belong to, and be performed by the Standing
Committee. In case of such vacancy, the committee shall
also have power to act in the granting of testimonials to cler
gymen removing into this diocese."
The 7th article of the Constitution of Wisconsin (1847)
provides, "that the Standing Committee, where there is no
Bishop, or he is incapable of acting, shall be the ecclesiastical
authority of the diocese for all purposes declared in this Con
stitution." The eleventh canon of Illinois, and the tenth of
Western New- York are as follows : " In case of a vacancy in
the Episcopate, the powers and duties to be performed by the
Bishop in matters of discipline, shall be performed by the
Standing Committee, except in those cases in which such
powers and duties are or may be specially delegated to or enjoin-
216 CONSTITUTIONS AND CONVENTIONS
ed upon the clerical members of said committee, in which
case such powers and duties shall be exercised by said cleri
cal members alone ; provided that no sentence shall be pro
nounced upon a clergyman bat by a Bishop."
The canon in New-York, previous to the convention of
1845, was precisely the same. That convention added, after
the words, " vacancy in the Episcopate," the words, " or the
inability or disability of the Bishop."
Now the power of a diocese to pass such a canon is unde
niable. The strict constructionist, who limits the phrases,
" vacancy in the Episcopate," " where there is no Bishop,"
and " without a Bishop," to their literal acceptation, finds a
case omitted to be provided for by the General Convention,
provided for here. The general canon itself has recognized
the right of the diocesan conventions to prescribe the duties of
the committee, except where prescribed by the General Con
vention. On the other hand, they who approve of the extend
ed construction put upon these words by the Standing Com
mittee of New- York in 1845, find in this action a recognition
and confirmation of their interpretation, as far as relates to
cases under the general canons, and a full express authority
in all cases of discipline, under the constitution or canons of
the diocese.
It is well known that in the unfortunate situation in
which the Diocese of New- York was placed by the suspension
of Bishop Onderdonk, the Standing Committee assumed the
conduct of the business of the diocese -to a great extent. In
this they were supported by a vote of the Diocesan Conven
tion, and the above alteration was made in the canon, " to
strengthen the committee, and make it more clearly their
duty to act in the manner proposed in the existing emer
gency." (Report of the Committee of the Convention.)
The course of reasoning by which the committee sus
tained their action will be found at length in a report of a
OF THE DIOCESES. 217
sub-committee printed at page 36 of the Journal of 1845.
The conclusions were that Bishop Onderdonk was still the
Bishop of the diocese, and that no other Bishop could be elect
ed in his place ; and yet that there was such an entire inhi
bition upon the exercise of his powers, as let in the authority
of the Standing Committee, from the necessity of the case,
and upon the doctrine of a constructive vacancy, for the pur
pose of government, not for any other.
It may be. at least, plausibly urged, that the action of the
General Convention of 1847 decided that the sentence of sus
pension did not vacate the jurisdiction of the Bishop ; but if
this is disputable, at least it is clear that as a sentence must
now be terminable on its face, the avoidance could not take
place.1
The same question, then, which was agitated in New-
York, might arise in almost every diocese except Wisconsin.
The views which were taken by some of the Right Reverend
Bishops, that the Standing Committee had no power in the
premises, will be found cogently set forth in a letter of Bishop
Doane to the Committee, in the Journal of New- York in 1845.
On the other side, those who treated the sentence as entirely
equivalent to a deposition, had no difficulty ; and of this opin
ion was, as is understood, Bishop Freeman of Delaware, who
recognized the action of the committee. The venerable pre
late of Connecticut, after much deliberation, adopted the same
course, but not upon the same principle. His letters con
taining the exposition of his views are to be found in the New-
1 Bishop Elliott of Georgia, in his address to the Convention of 1848,
says, that the General Convention had decided) and justly in his opin
ion, that the jurisdiction of a Bishop was not voided by a sentence of
indefinite suspension, and while a canon was passed requiring that in
all future cases where the penalty of suspension was inflicted, that it
should specify terms and limits to the sentence, provision was made
for the particular case which brought up the discussion of these prin
ciples.
218 CONSTITUTIONS AND CONVENTIONS
York Journal of 1845. It will be noticed that the language
of the Bishop is — " that he considers the Episcopal powers of
the Bishop of New- York as fully suspended, and in a state of
entire abeyance ; and that in respect to their exercise, there
is a virtual vacancy of the Episcopate. "Under these circum
stances, I am of opinion, after mature deliberation, that the
Standing Committee may rightfully execute all the powers
which would devolve upon them during an actual vacancy in
the Episcopate ; and that they will be justified in so doing, as
well by the general spirit of our Church organization, as
by the urgent necessity of the case." (Letter 20th May,
1845, p. 32.) In his letter of the 10th of April preceding,
the Bishop had said, that, " in his opinion, the exigency had
not arisen when the Standing Committee becomes, according
to the constitution and canons of the Church, ' the ecclesi
astical authority of the diocese ' — that is, the diocese of New-
York was not ' without a Bishop.' '
The result of these matured opinions certainly goes far to
sustain the standing committee in their course of action, and
upon their own reasoning.1 After the resolution and change
of the canon of New-York, in 1845, it is believed that no
Bishop of the Church had scruples in recognizing the autho
rity of that body.
1 I cannot forbear stating a very high authority in the Church upon
this question, which was not adverted to in the discussions upon the
subject. Bishop Stillingfleet, in his letter on the right of jurisdiction,
during the suspension of the Archbishop of Canterbury, in 1689, dis
cusses the question, whether the authority had devolved upon the Dean
and Chapter. After showing that, in case of a legal vacancy, the right
belonged to them, he says : — " The canonists make the case to be the
same in an interpretative as in a real vacancy. Parnormitan lays
down this for a rule — Episcopo mortuo naturaliter vel civiliter capitu-
lum succedit in jurisdictione tarn spiritualium quam temporalium. He
notices a decretal, settling the question in case of captivity, and quotes
the following gloss: — Et sic nota quod sicut capitulum cum vacat Ec-
clesia supplet vicem Episcopi in jurisdiclione; sic et cum quasi vacat.''
OF THE DIOCESES. 219
This resolution was, that "until effectual and permanent
provision be made for the supply of Episcopal services, the
standing committee shall continue, in its own name and au
thority, to invite the performance of such Episcopal acts for
or within the diocese, as may be necessary, by Bishops of the
Church."
Then, by the 4th canon of the General Convention in 1847,
any Bishop, assistant Bishop, or missionary Bishop, may, on
the invitation of the convention or the standing committee of
any diocese, where there is no Bishop, or where the Bishop is
for the time under a disability to perform Episcopal offices by
reason of a judicial sentence, visit and perform Episcopal
offices in that diocese, or in any part thereof; and this invi
tation may be temporary, and may at any time be revoked.
The cases in detail, in which the powers of a standing
committee may be exercised, both in conjunction with a
Bishop, and where there is none, will be stated in their pro
per places throughout the work.
3d. With respect to the powers specially conferred upon
the committee by the canons of the respective dioceses, they
will be found under various heads in the ensuing part of the work.
In several of the dioceses there are committees
§ 5. COMMIT-
appomted for some purposes which may be briefly TEES OTHEB
noticed. THAN STAND-
In New-York, for example, the missionary ope- INQ COMMIT"
TEE
rations of the diocese are conducted by a committee
of the convention, chosen by ballot, consisting of ten members
of the Church within the diocese, one-half of whom shall be
clergymen, and the other half laymen, who, with the Bishop
or Bishops of the diocese, shall compose a Board, to be called
" The Missionary Committee of the Diocese of New- York,"
who, as agents of the convention, shall have the distribution
220 CONSTITUTIONS AND CONVENTIONS
of all funds which may be raised for the support of mission
aries in the diocese.
The Bishop shall be ex-officio President, and shall have
the sole power of nominating missionaries for appointment by
the committee. In case of a vacancy in the Episcopate, or of
the inability or disability of the Bishop to act, any member of
the committee shall have the right to nominate.
So, in Florida, by the 6th canon, a diocesan missionary
committee is established, consisting of all the clergymen
canonically resident in the diocese, and of four laymen resid
ing in the same parish, to be elected by the convention.
The operations were conducted under the direction of the
ecclesiastical authority, there being no Bishop in Florida in
the year 1847.
Similar committees are appointed in many other dioceses,
such as in Massachusetts, Western New- York, and Rhode
Island.
In Rhode Island, by a canon passed in 1847, a Board of
Commissioners for the building of churches was established.
It consists of four laymen and the Bishop, who shall always
be the chairman. The laymen are appointed annually, by a
vote of the convention.
So, in Georgia, the convention shall appoint annually, by
ballot, a committee of two clergymen and three laymen, of
which committee the Bishop of the diocese, when there is one,
shall be ex-officio chairman, whose duty it shall be to take in
charge the Missionary, Bible, Common Prayer Book, Tract,
and Sunday School operations of the Church of the diocese.
The committee is to make a report of their proceedings to
each annual convention. (Canon 3, Journal 1847.)
There are also other diocesan committees, of a special
nature, in various dioceses ; such, for example, as a commit
tee on a diocesan fund, a committee for the relief of disabled
OF THE DIOCESES. 221
clergymen, and others. It is not necessary to enter into a
detail of the provisions in such cases.
TITLE V.
REGULATIONS OF LEGISLATIVE ACTION.
In Maryland, eight members of the clerical and l QUORUM
eight of the lay order constitute a quorum for the
transaction of business, but a smaller number may adjourn.
In Massachusetts, the members present, on due notification,
and duly organized, shall constitute a quorum for the trans
action of the ordinary business of the convention. In Con
necticut, one- third of the members of the clerical, and twenty
members of the lay order are sufficient — a smaller number
may adjourn. By the rule in Missouri, the Bishop, with such
clergymen and lay deputies as shall at any time be duly as
sembled in convention, may act. The provision in Kentucky
is the same. That of Delaware requires only two members
of the clerical, and six of the lay order ; and in Western New-
York twenty clergymen entitled to vote in convention, and
deputies from twenty congregations suffice.
The regulation of New- York by the canon of 1848, § 9, is
that the presence of at least thirty clergymen entitled to vote
in the convention, and of delegates from at least thirty con
gregations, shall be necessary to the transaction of business,
except that a smaller number may adjourn from day to day.
By the second section of the 5th article of the
Diocese of "Wisconsin, the clergy and lay delegates VOTING
shall deliberate in one body, and shall vote as
such. On a call of any five members, the convention shall
vote by orders. In such a case, the concurrence of both orders
shall be necessary to give validity to any measure, and each
parish shall be entitled to only one vote.
On every question the votes of a majority of those present ;
16
222 CONSTITUTIONS AND CONTENTIONS
or when voting i»y orders, the votes of a majority of those
present of the two orders respectively, shall decide the ques
tion.
The rule in Ohio is similar to this of Wisconsin. Unless
a requisition to vote by orders is made, the vote is in one
body ; and as th TC may be three or four delegates from a
parish, the preponderance of the laity in this mode of voting
would be great. In Maryland and Virginia there is a similar
rule, but then each parish sends but one delegate, or only so
many as there are officiating ministers within it.
In New-York the regulation is more complex. By the
7th article of the constitution, the clergy and laity are to de
liberate in one body, and in voting the clergy shall vote by
individuals, and the laity by congregations; and when more
than one church or chapel shall be united under one vestry,
the delegate or delegates of such vestry shall be entitled to a
vote for each church or chapel.
A majority of the votes of the two orders, jointly, shall be
decisive ; but if in any case it be required by five votes, the
two orders shall vote separately, in the manner aforesaid —
that is, the clergy by individuals, and the laity by congrega
tions, and a concurrence of a majority of each order shall be
necessary to constitute a decision.
In the election of a Bishop, the two orders shall always
vote separately, and in the mode before mentioned.
In Pennsylvania, every member who shall be in the house
when any question is put, shall, on a division, be counted,
unless he be particularly interested in the decision. (9 Rule
of Order) So in New-Hampshire. (9 Rule of Order)
In Maine, each church represented in convention shall
have one vote, and no deputy shall represent more than one
church. (Const., Art. IV) The clergy and lay delegates
rote and deliberate in one body ; but, when requested by any
OF THE DIOCESES. 223
member, may vote in two distinct orders, and the concurrence
of both orders is requisite. (Art. III.)
By a rule of Massachusetts, a question, being decided,
shall not be reconsidered during the same session, without
the consent of two-thirds of the members present, nor unless
the motion to reconsider be made and seconded by members
who voted in the majority on the original decision. A similar
rule, as to two-thirds, prevails in Rhode Island, (Rule 5, 1847,)
and in Pennsylvania and Delaware.
Various other regulations, more or less minute, prevail in
the different dioceses ; but it is thought sufficient to point out
the above as of chief importance.
CHAPTER III.
OF PARISHES— THEIR SEPARATION AND DIVISION ;
AND THE ORGANIZATION OF CHURCHES, OR
CONGREGATIONS.
TITLE L
OF PARISHES THEIR DIVISION THE FORMATION OF NEW ONES,
AND THE BUILDING OF CHURCHES.
The Diocese was an early territorial division in Christian
countries, and to the inferior clergy were only entrusted such
villages or small districts as the Bishop chose to assign to
them. The oblations paid were managed by him. He had
entire control of all inferior churches within his diocese, formed
by the act of the patron who founded and endowed the church,
and who would regulate the extent of the parish limits, but
the authority of the Bishop was necessary for the complete
settlement of the ecclesiastical division.
Occasionally the Popes interfered, as in the instance of an
injunction of Alexander III. to the Archbishop of York, enjoin
ing him to divide a parish which was too large. Again, the
royal power was sometimes invoked. Henry III., at the re
quest of the Bishop, ordered a church to be suppressed in the
town of Chichester, and two parishes to be joined into one.1
1 See a Treatise by Sir John Conelly on the Law of Tithes in Scot
land, and the authorities, particularly that of Selden, cited by him.
226 OF PARISHES.
Bishop Stillingfleet says : — " There were at first no such
parochial division of cures, here in England, as there are now;
for the Bishops and their clergy lived in common, and before
the number of Christians was much increased, the Bishops
sent out the clergy to preach to the people as they saw occa
sion. But, after the inhabitants had generally embraced
Christianity, this itinerant going from place to place was
found very inconvenient. Thereupon the bounds of parochial
cures were found necessary to be settled here, by degrees, by
those Bishops who were the great instruments of converting
the nation from Saxon idolatry."
The learned author then traces the progress of parishes in
the Saxon times. " In the Council of Cloveshoo," (called the
first of the National Councils, A. D. 742,) " we hear of pres
byters placed up and down by the Bishops in the manors of
the laity, and in several parts distinct from the Episcopal Sec.
Every Bishop, as appears by the Saxon Councils, was bound
to see parochial churches built, and the clergy to bs settled
in them."
"In the ancient Church," says Chief Baron Gilbert, "they
had but one chief pastor to every particular church or diocese,
and the other clergy were ambulatory, at the Bishop's plea
sure, within the diocese ; and tho', after the Council j^f Late-
ran, the parochial clergy were settled in each parish, the
Bishop only retaining a chapter in the cathedral church as
assistants to him, yet the Bishop was reckoned as the sole
pastor of the church, and the others to have the cure under
him. Hence, in provincial synods the Bishops only met, and
were convened by the Metropolitan ; and each Bishop also
held a diocesan synod with his own clergy, in which he made
rules and orders for the regulation of the diocese, provided
they were not against the canons of the province."1
1 Court of Exchequer, p. 48. To show the great antiquity of the
division into parishes, some Canonists cite a letter, ascribed to Pope
OF PARISHES. 227
In several of the Southern dioceses, the territory had been
divided into parishes by acts of the Colonial Assemblies.1
Dyonysius, of the year 269. (Apud Cnllectio Conciliori&m Mansi, tome
1, p. 1006. Ecclesias vero singulas singulis presbyteris dedimus, paro-
chias et cemetria eis divisimus, ut unicunque jus proprium habere statui-
mus, ita videlicet ut nullus alterius parochice terras, terminos aut jus
invadat ; sed unusque suis terminis sit contentus, et taliter ecclesiam et
plebcm sibi commissam custodiret, ut ante tribunal ceternijudicis, de omni
bus sibi commissis rationem reddat, et non judicium sed gloriam pro suis
actibus recipiat.
It is, however, denied that this letter is rightly attributed to the
Pope. Van Espen, speaking of its antiquity, says, that it was known
in the time of Athanasius. (De Pastoribus, tyc., tome 1, p. 10, tit. 3.
1, 2.) In his treatise De Jure Parochorum, (tome 2, p. 249, cap. 1, $ 3,)
he observes — Dioceses sive Districtus Episcopales jam a pluribus sae-
culis in phires portiones quas parochias hodie dicimus fuisse distri-
butas, notissimum est. Porra sicuti uno diocesi unicus Prasfectus fuit
Episcopus, ita et singulis parochiis datus fuit presbyter qui totius
parochise curam spiritualem ageret; qui propterea parochus seu pres
byter parochianus dicebatur.
1 In Maryland, by an act of 1692. the counties were divided into
parishes. In 1725, a division to some extent took placej in furtherance
of one of the schemes of Boardesley to ruin the Church. (HAWKS'
Contr. 2, pp. 70 and 177.) Other changes took place, but, as I under
stand, the diocese is still divided into parishes, whose boundaries are
fixed by law — that is, either under the original division, or such
•changes as have been made by subsequent statutes, or by the Con
vention, by virtue of the law of 1798, giving that body the power to
divide parishes. The separation of a parish, or the establishment of a
separate congregation, is provided for in the 3d canon of 1847.
I have not been able to ascertain when the establishment of parishes
first took place in Virginia. Justice Story, in Terret vs. Taylor, (1
Wheaton,) says "that the State was thus divided into parishes at a
very early period.5' They are referred to in an act of the Colony of
1629, and Dr. Hawks gives a list of those in existence in 1722, (Contr.,
4*c.? vol. 1, p. 55;) fifty-four parishes in twenty-nine counties. He
states that in many of the larger parishes there were chapels of ease.
In the act of 1784, the minister and vestry of each parish already
in being, or thereafter to be established, were made a body corporate.
The Convention of the Church was authorized to regulate all her reli
gious concerns, settle all matters concerning doctrine, discipline or
worship^ and make such rules as should be just for orderly and good
228 OF PARISHES.
These divisions prevail substantially, in some cases, to this
day, although varied by law, or by the conventions of the
Church.
In England, the adjustment of church boundaries gene
rally depends upon ancient and immemorial custom, for they
have not been limited by act of parliament, nor set forth by
special commissioners, but have been established as circum
stances of time and place did happen to make them greater
or lesser.1 Perambulations of parishes, in order to identify
and preserve the certainty of bounds, were of ordinary occur
rence, and were expressly directed and regulated in old insti
tutions.2
government. This act was repealed in 1786. An ordinance for the
general government of the Church was adopted by the Convention in
1787, after this repeal, and contained provisions similar to those iti the
act before mentioned.
As I understand, the original division into parishes remains, with
such changes as hare from time to time been made. The power to
separate and create new parishes rests in the Convention. A canon of
1823, amended in 1839, regulated the exercise of this power.
In South Carolina, also, parishes were to a great extent defined by
law. In the case of Bankstead vs. The Vestry, $*e., of Christ Church,
(STOBHART'S Eq. Rep., 197,) the subject is explained. The Court say
— "That by an act of 1708 the boundaries of several parishes were
defined — that from an early period it was the custom of the General
Assembly, when the boundaries of a parish were large, and conveni
ence required it. to establish other places of public worship besides the
parish church. These were called Chapels of Ease, and the statutes
required the rector of the parish to perform ministerial offices in them
at stated periods." The question in the cause arose from an applica
tion, by the vestry, of some of the funds to the payment of the minis
ter's expenses when serving in the chapel. The decision supported
the right to do so. The Court said that they would not interfere with
the acts of a vestry unless their charter was transgressed.
It appears that the legislature often interposed to define the limits
of parishes, to unite one or part of one with another, and to divide
them. There are some instances of this after the Revolution. See
BRENARB'S Digest, Tit. Districts and Parishes.
1 BURNS' Ecc. Law, vol. 3, p. 74.
a Injunctions of Elizabeth apud Gibson, vol. 1, p. 239. " For the re-
OF NEW CHURCHES. 229
The whole subject of the division of parishes has been
regulated in England by the Act of 1 and 2 Victoria, cap.
106, § 26, and I deem it useful to state its leading provisions
in a note.1
The erection of new churches within a parish
THE BUILDING
is a branch of the same power as that of creating NEW
,..,. ,, ., T1 i • /. CHURCHES.
new, or dividing old parishes. Indeed, if a new
church is erected, and occupied for services in a parish, it im
plies, to a certain extent, a division of that parish. To such
an erection the canon law, both foreign and English, impera
tively requires the sanction of the Bishop.1
taining the perambulation of the circuit of parishes, they shall once in
the year, at the time accustomed, with the curate and the substantial
men of the parish, walk about the parishes as they were wont, and at
their return to the church, make their common prayers.'7 The curate
was, at certain convenient places, to admonish the people to give
thanks to God for the abundance of the fruits of the earth, and to
inculcate these or such sentences : " Cursed be he which translateth
the bounds and dolles of his neighbour.'7
1 When a Bishop shall consider that a place or district might be ad
vantageously separated from any parish or mother church, and be in
stituted as a separate benefice, or united with any other parish, or that
any extra parochial place may be usefully annexed to an existing par
ish, or be constituted a separate parish, he shall draw up a scheme in
writing of the proposed alteration, and showing how it may be made
with justice to all interested, as to ecclesiastical jurisdiction, glebes,
tithes, and other rights and dues. This is to be presented to the Arch
bishop, with the consent in writing of the patron. If the Archbishop
approve, he is to certify it to the Queen in council, who is to make an
order for carrying it into effect. It shall be binding upon all, including
the incumbent, provided such incumbent has given his consent in
writing to the same ; but if no such consent has been given, the order
shall not go into operation until the next avoidance of the benefice by
such incumbent.
1 See the Dissertation upon Benefices by JOHN DE SELVA apud Moli-
nceus, (Tome 4, p. 762 et seq. Ed. Paris, 1681.) In his sixth question
he examines the point whether it is allowable to any one to erect a
church and endow it on his own authority. After a minute statement
of canonical authorities, he concludes with those doctors who hold the
negative. He quotes also the opinion of a canonist, that no one should
230 OF NEW CHURCHES.
The canonists lay down the rules with great unanimity,
that the Bishop ought not to consent to the erection of a new
parish within the limits of another without some reasonable
cause therefor. Among such legitimate reasons is this, that
the parishioners cannot, without great inconvenience, come to
the parish church to receive the sacraments and attend the
offices. But what the distance from the church, or the size
of the parish should be, as it has not been declared by law,
must be left to the discretion of the judge.
As the construction of a new church may injure the rights
of the rector or patron of the old, the Bishop must not give
his consent without citing and hearing the rector and others
interested. Bat if the rector being thus cited and heard, re-
be allowed to establish an oratory in his own house without Episcopal
assent; lest prejudice should be done to the parochial church, (p. 766.)
But the same author holds (p. 766, § 19, 20) that the Bishop may,
upon reasonable cause, establish a new church, though to the prejudice
of another; bat it seems it must be with consent of his chapter.
So in the Institutes, Jur. Can. (Lib. 2, Tit. 18,) it is laid down, that
a new church should be built when, by reason of the increase of the
people within certain limits, the number of the faithful has become so
large that one church is insufficient for them'; and for the same reason
that one Episcopal see may be divided into two with the consent of
the Bishop, so also may the Bishop divide parishes with the assent of
the rector, which, when done, that part of the congregation which is
attached to the new church is released from the power of the first.
By one of the Novels, (131, cap. 10,) the Emperor Justinian de
clared, that none shall presume to erect a church until the Bishop of
the diocese has been acquainted therewith, and shall come and lift up
his hands to heaven, and consecrate the place to God by prayer, &c., and
erect the symbol of our salvation there.
The 4th canon of the Council of Lateran was express upon this
point — " No one shall build a monastery or church against the will of
the Bishop of the city." This canon was adopted in England at the
Council of Westminster in the time of King Stephen. Nequis absque
licentia Episcopi sui, in possessione sua ecclesiam vel oratorium con-
stituat. See GIBSON'S Codex, vol. 1, p. 212. The argument of Bishop
Gibson against Lord Coke's opinion, that the Barons could build,
churches of their own authority, seems very decisive. See also BURNS,
by Phillimo-re, vol. 1, p. 223; i.
OF NEW CHURCHES. 231
fuses his consent, and the erection is still deemed necessary,
it may be done in opposition to his remonstrance.1
It is also well settled, that the license of the Bishop
is necessary to authorize any minister to officiate in an
unconsecrated place ; and by the law of England, the con
sent of the incumbent is equally essential.3
There is another principle of the General Law of the
Church fully established. There can be no such thing as a
church, in its true canonical sense, until the building has
been consecrated by the Bishop.3 In the nervous language of
1 VAN EsFEN/Pars. II, Tit. 16, cap. 2, De Edif. fyc. Ecclesiisj particu
larly § 12-16. The 17th section is as follows: Si Rector citatus et
auditus in nova parochise erectione consentire renuat et tamen erectio
ilia necessaria judicetur, poterit tune etiam illo invieto procedi, ut uno
consensu resolvunt canonists.
2 This law of the English Church was settled in the Council of
London, under Archbishop Stratford, in 1342. It is in the first consti-
tion of what are called the Extravagants. Nos de fratrura nostrarum
et totius concilii assensu et concilio decernimus quemcunque in ora-
torias, capellis, aut domibus hiijusmodi seu in loco minirne dedicate
seu delibato missarum solenina (Diocesani non obtenta licentia) contra
canonum prohibitimem, celebrantum, suspensionem a divinomm cele-
bratiorie per mensem incurrere ipso facto. Then follows a passage re
cognizing the authority of the Bishop to give such license, and saving
all such licenses as had been previously granted, and where custom,
had established the privilege. (See Oxford edition, 1679, of Lynwopd
and John of Anthon, ad finern p. 48.)
In the case of Hodgson vs. Dillon, (2 Carter's Rep. 388,) Dr. Lush-
ington in his judgment observed, li I need not say that the ancient
canon law of this country knew nothing of proprietary chapels, or un
consecrated chapels at all. The necessities of the times, and the want
of accommodation in the churches and chapels of the metropolis and
other larjye towns, gave rise to the erection of chapels of this kind, and
to the licensing of ministers of the Church to perform duty in them.
The license emanates from the Episcopal authority. The Bishop, how
ever, cannot grant such a license without the consent of the rector or
vicar of the parish."
3 Lord Coke (4 Just., p. 403) says, that the law takes no notice of
churches or chapels until they are consecrated by the Bishop. A ques
tion, therefore, of church or no church, is to be settled by him. See
232 OF NEW CHURCHES.
Ridley, " that the Patriarch or Bishop should challenge this
jurisdiction over the new church seems most reasonable. For
what did the patron do more than the man of Israel, who
brought a lamb to the door of the Tabernacle, but the priest
made it an offering and atonement. The patron, indeed,
might perhaps choose the place, but until the prelate came and
sanctified the ground, it might as well be a den of thieves as
a house of prayer. The patron might bring the stone — the
Bishop laid the foundation ; or, if the workmen put the ma
terials together, and made up a house, the Bishop made that
a church. Till then there was nothing but the breathless
body of a temple, the soul being yet to come. Therefore it
was, that the privilege of a new church followed, not the
building, but the consecration of it." He cites a law of King
Alfred, confining the privilege of sanctuary to consecrated
churches.
There was another rule in force — that no church should be
consecrated without a sufficient maintenance being provided
for it.1 The ancient manner of founding churches was this :
After the founders had made application to the Bishop of the
also 3 Inst.j 203. So chapel or no chapel ought to be tried by the
spiritual judge; for a chapel dependent on a mother church cannot be
founded but with license of the ordinary. GrssoN 1. p. 236.
1 This \ras made the law of the Church of England by the 16th
canon of the Council of London. " A church shall not be consecrated
until necessary provision be made for the priest." The canon law re
quired the endowment to be ascertained before they began to build,
and the same was the rule of the civil law.
The same law was enacted in the Council of Toledo. St. Chrysostom
calls it the dowry of the bride. (S^ELMAN De Non Temerandis Ecc.
p. 5.) Justice Story thus states the English law: u The true legal
notion of a parish church is a consecrated place, having attached to it
the right of burial and the administration of the sacraments. Every
such church ought to have a manse and glebe as a suitable endow
ment, and without such endowment it cannot be consecrated, and un
til consecration, it has no legal existence as a church." (1 WHEATON,
414.)
OF NEW CHURCHES. 233
diocese, and had his license, the Bishop or his commissioners
set up a cross and set forth the ground where the church was
to be built, and then the founders might proceed with the
building of it ; and when the church was finished, the Bishop
was to consecrate it, but not till it was endowed ; and before
this, the sacraments were not to be administered in it.1 So
the canon law was very strict upon the subject of demolishing
or enlarging the old churches and erecting new buildings in
their place. By a constitution of Otho, which is only a repe
tition of the fixed rule of that law, neither abbots nor rectors
should presume to pull down ancient churches without the
consent of the diocesan, under pretext of increasing the size
or beauty. The Bishop was carefully to consider whether
he would give or refuse this permission. Othobon added a
provision, that the rector of every new church should apply to
the Bishop within a year for its consecration, or should be
suspended. (Apud GIBSON, vol. 1, p. 210, 211.)
The authority to divide parishes and erect new ones is
recognized, in several dioceses, to exist in the Convention.2 It
1 DEOGE'S Parson7 s Counsellors, part 1, c. 12.
aln Virginia, in a canon of 1823, it was recited that, from the
great extent of many of the parishes, and from other reasons, it might
be expedient to permit the division of some of them, — and it was
enacted, that, whenever it should be made to appear to the satisfac
tion of the Convention that such division is expedient, or when the
desire of the people of the parish shall be manifested in the way
pointed out, the petitioners may be received as a distinct parish.
In 1839, this canon was amended, by adding a provision that due
notice should be given, at least three months previously, to the rector
and churchwardens of the original parish, of such proposed division.
In 1848, a revision of the canons took place. The 2d canon, enti
tled, " Of the Division of Parishes," provides, that whenever the mem
bers of the Church, residing in a particular portion of a parish, shall
desire to separate from the parish of which they form a part, it shall
be lawful for them to assemble, and appoint a committee to take such
measures as may be necessary.
The committee must give to the Bishop, and to the vestry of the
parish, if there be one, a formal notice of their intention to apply for
234 DIVISION OF PARISHES.
is shown, by the authorities cited in several preceding notes,
(p. 229,) that, by the general canon law, as well as that
of England, this power (being in effect almost identical with
such purpose, which notice shall contain a description of the proposed
lines of division, and must be sent to the Bishop and vestry at least
three months before the meeting of the Convention at which the appli
cation is to be made.
Such application shall be in the form of a petition, setting forth
the considerations rendering the division desirable ; \vnereupon the
Convention, if they deem it expedient, may proceed to divide such
parish.
By the 12th canon, entitled. U0f the Formation of New Congrega
tions," when any number of persons belonging to any parish or con
gregation, sufficient to build a house of worship and provide for the
support of a minister, shall choose to separate from such parish or
congregation, they may proceed according to the directions given in
the eleventh canon, except that, in such case, the direction as to a lino
or lines of division is inapplicable. The Convention may, on such
petition, constitute the applicants a separate congregation.
The Committee on Canons, in the year 1848, reported "that they
found on the Journal of the last Convention the following resolution :
" Resolved, That the Committee on Canons take into consideration
the canon or canons relating to the division of parishes or formation of
new ones, and to inquire into the expediency of abolishing so much of
the canons as requires that the boundaries of parishes shall be defined.
li Your committee suppose that the division of parishes and forma
tion of new ones will be sufficiently provided for by the adoption of the
canons presented in the preceding report, (the llth and 12th canons.)
And with regard to parish boundaries, it will be perceived, by a refer
ence to Canon 31 of the General Convention of 1832, that to abolish
them entirely is not within the power of the Diocesan Convention.
We might do away with those to which we have been accustomed,
but this would only bring us within the provisions of the general
canon, which ordains that where no boundaries are defined by law or
otherwise, the city, borough, village, town, or township limits shall
be recognized for the purposes contemplated."
The Vestry Act of Maryland, of 1798, gave full power to the Con
vention of the Church to divide or unite parishes, as occasion might
require, and to alter their bounds, and to constitute new parishes.
(§ 33.) And, by the 3d canon of that diocese, (1847,) no part of a
parish shall separate itself from the residue thereof as a distinct
parish, nor shall any number of the members of a church in a distinct
parish associate themselves as a separate congregation therein, with-
DIVISION OF PARISHES. 235
that of building new churches) was vested in the Bishop, so
far at least as that his consent was necessary ; and the provi
sion of the English statute was adverted to, showing that,
out first obtaining leave of the Convention, who shall judge of the
necessity or expediency thereof.
By a resolution of the Convention, adopted in 1811, it was deter
mined that no consent would be given to the division of a parish,
unless it should appear that the petitioners for the same had set up
notices of their intended application, three months previous to the
same, at the parish church, if there be one, and also at the other
public places within such parish, and shall lay before the Convention
correct information of the lines of the parish so to be divided, the situ
ation of the churches or chapels already therein, together with the
intended lines of the new parish.
This resolution is now in force, and in 1849 the Committee on New
Parishes recommended the rejection of several applications, on account
of the neglect to give the prescribed notice; which was assented to.
At the same Convention, an application to form a new congrega
tion within a parish, being assented to by the rector and vestry, was
granted. And two new parishes were formed, and defined by metes
and bounds, out of existing parishes, the assent of the rector being
obtained.
The system in Maryland is thus, in general, canonical in principle
and wise in the details. The notice to the rector and vestry is pro
vided for; the consent is sought; but, if refused, there is a power in
the Convention to carry t.ut a division, nolwithsfanding the refusal. I
may be allowed to suggest, whether, in omitting to provide for the
assent of the Bishop, it is not imperfect.
By the 8th canon of the diocese of Connecticut, it is made the duty
of the Convention, from time to time, to examine and determine the
limits of the several cures within the diocese; and, in the settlement
and maintenance of clergymen, the several parishes shall strictly ad
here to such arrangement, except in cases of imperious necessity, and
with the advice and consent of the ecclesiastical authority. See the
proceedings for the formation of St. James Parish Zoar, in Newtown,
Journal 1830, by petition to the Convention. The object was to form
a separate parish out of that known as Trinity Parish.
By a canon of the diocese of Alabama, (1849,) when any portion of
a parish, in connection with the Convention, shall desire to separate
from the parish to which they belong, and to form a new parish, they
shall first secure the consent of the parish, adopt articles of associa
tion, and apply to the Convention for admission. In case the parish
should not consent to the proposed division, the fact shall be made
236 DIVISION OF PARISHES.
while the Bishop originates, the Archbishop must approve,
and the Queen must ratify. It was also shown that, by the
English law, the division cannot be perfected during the in
cumbency of a minister, without his consent.
But, in this, the English differs from the general canon
law. The authorities cited prove that the Bishop could (after
duly hearing the rector) divide a parish, and erect a new
church, against his consent. And the canonical regulations
and resolutions in Virginia and Maryland, before quoted, tend
to prove the same thing, but vesting the power ultimately in
the Convention.
See further upon this subject, post, Tit. 7, Of the Admis
sion of Churches into Union, and also Chap. VI., upon the
31st Canon of 1832.
known to the Convention, which shall then decide upon the expediency
of the separation.
By a canon of the Scottish Church, (39 of 1838,) should any num
ber of Episcopalians, living in any town or village in which there is
an Episcopal chapel already in existence, entertain a desire to be
formed into a congregation in communion with the Church, they are
to pursue the method pointed out. A meeting is to be held upon
public advertisement, and resolutions expressive of the wish, and the
reasons for it, are to be signed by the applicants, and transmitted to
the Bishop of the diocese. The Bishop is to consult the presbyters.
If he follow the advice of a majority of such presbyters, his decision
shall be final ; but, if he decide against that advice, an appeal may be
made to the College of Bishops. Should the Bishop sanction the ap
plication, the congregation may then proceed to elect a minister, and
present him to the Bishop, according to Canon 10.
It appears that in the Established Church of Scotland the division
of parishes is regulated by the law of the State. (See SIR JOHN CON-
NELL'S Law of Scotland as to the Erection, Union, and Disjunction of
Parishes, 1818.) The course (at least at that time) appears to be this:
The Presbytery of the bounds perambulated the parish — the heritors
represented the case to the General Assembly, which judged of the
propriety of the measure; and, if the decision was favorable to it,
instructed the Procurator of the Kirk to prosecute the affair according
to law.
ORGANIZATION OF CHURCHES. 237
TITLE II.
THE ORGANIZATION OF CHURCHES.
S 1
This subject comprises, first, the method pro-
INCORPORA-
vided by the legislatures of various states for ef- TION UNDER
fecting a legal incorporation, or organization of CIVIL LAWS.
churches ; and next, the provisions of conventions for effect
ing an organization where there are no legislative enactments.
It would be a work of much labor, and without a corres
ponding advantage, to state in detail the statutory regulations
prevalent in various dioceses. It will be sufficient to present
them as they exist in some of the older, with an occasional
comparison with others. Some general principles will be
found to prevail throughout.
In New- York, for example, an act was passed in 1784 to
enable religious denominations in the state to appoint trustees,
who should be a body corporate, for the purpose of taking
care of the temporalities of their respective congregations,
&c. It is needless to state the provisions of this act,
as one was subsequently passed relating especially to the in
corporation of churches of Episcopalians. The tenth section
may, however, be noticed. It was provided " that nothing
therein contained should be construed, adjudged, or taken to
abridge or affect the right of conscience or judgment, or in
the least to alter or change the religious constitutions or
government of the said churches, congregations, or societies,
so far as respects, or in any wise concerns the doctrine, dis
cipline, or worship thereof."1
1 There was a statute in force in Connecticut in the year 1807. un
der which congregations of all denominations might organize. It ap
pears from the address of Bishop Jarvis of that year, that some of the
churches had dropped the words, u wardens and vestrymen," and
<; parish," and substituted "committee," and c: society." This prac
tice he condemns, and observes, that as far as the law extends to the
Church, the wardens and vestrymen have all the powers of what is
termed a Society's Committee. (Journal, 1807.)
In the convention of 1840, a committee was appointed to inquire
16
283 ORGANIZATION OF CHURCHES.
I shall make the statute of New- York the guide of my
remarks upon this head, adverting to the analogous provisions
in other dioceses.
The statute at present in force was passed in 1801, -e*
vised in 1813, and amended in 1819. Some farther clau.es
were adopted in 1826. The following are the provisions of
the existing law, broken into sections for convenience, but
the language is given literally.
" It shall be lawful for the male persons of full
WHO MAY
UNITE a£e belonging to any church, congregation, or reli
gious society, in which divine worship shall be
celebrated according to the rites of the Protestant Episcopal
Church in this state, and not already incorporated, at any
time to meet for the purpose of incorporating themselves, and
of selecting churchwardens and vestrymen." (Act of March
5, 1819, § 1.)
By the act of 1813, it was requisite that the persons
should have belonged to the congregation for the last twelve
months preceding the election and incorporation, and should
into the expediency of applying to the legislature for the passage of
some act suited to the organization of the Protestant Episcopal Church
in the diocese. In 1841 the committee reported, and a further com
mittee was appointed to prepare and report some suitable legislative
measure. At the same convention a report was made and accepted —
that as the Seventh Article of the Constitution of the state declares
that each and every society or denomination of Christians in the state
shall have and enjoy the same and equal powers, rights, and privileges,
no special act in behalf of any one religious denomination could be
obtained of the legislature, and that it would be better to endure the
evils of the present imperfect laws on the subject of religious societies;
than to attempt to effect a special alteration in our favor, and fail."
In 1842, however, a provision was added to the General Statute of
the state, declaring that the acts which had been done by ecclesiasti
cal societies in the state, organized under the Episcopal order, should
be deemed valid, and that the wardens and vestrymen of such socie
ties, shall have all the powers in managing the affaiis of such so
cieties as are granted to the committees of religious societies.
ORGANIZATION OF CHURCHES. 939
have possessed the qualifications which are required at all
subsequent elections. By the amendment of 1819 these were
dispensed with at the meeting to organize.
The statute of the state of "Wisconsin appears to have
been taken nearly verbatim from the act of 1813 of New-
York. making1 these qualifications indispensable at the first, as
well as at future elections. (Journal Wisconsin, 1847, Ap
pendix D.)
By the 5th section of the act of New Jersey of 1829, the
qualifications of electors at the annual elections shall be con
formable to the constitution and principles of the Episcopal
Church in that state. These are prescribed by Canon 6, de
claring, that every person shall be entitled to vote who pro
fesses to adhere to the church, and contributes to its support
in the mode prescribed in his particular congregation, and
shall have been a worshipper in said church six months pre
vious to the election.
And, by the first section of the act referred to, " where
any congregation of the Protestant Episcopal Church in the
state, duly organized according to the constitution and usages
of such Church, desire to form themselves into a body cor
porate," notice may be given, and proceedings had as directed
in that and the succeeding section.
The course in Maryland, if I correctly understand it, is
this : — The colonial distribution of the state into parishes
has been retained, and recognized (for the purposes of the
Episcopal Church) in the act of 1798. Every Episcopalian,
therefore, belongs in fact to some parish, when he is attached
to any church. A new congregation or church is then formed
by a division of a parish, or a separation of a part and its
addition to another.
Accordingly, by the 33d section of the Vestry Act of 1798,
it is provided, that it should be lawful for the convention of
the Protestant Episcopal Church in this state to divide or
240 ORGANIZATION OF CHURCHES.
unite parishes, as occasion may require, and to alter their
bounds, and to constitute new parishes ; and vestrymen and
church-wardens of such new parishes shall be chosen as here
inbefore provided, and shall have perpetual succession, and be
incorporated by the name of the vestry of such new parish,
and shall have all the powers granted in the act to other
vestrymen and church-wardens ; provided, that a majority of
the members of the Protestant Episcopal Church, qualified to
vote for vestrymen, residing in any parish, or part or parts of
a parish or parishes, proposed to be added to any new parish
or parishes, or to be constituted into a new parish, shall con
sent thereto.
The qualifications of voters for vestrymen are declared in
the 2d section of the act, Every free white male citizen, a
resident of the parish six months previous to the election, who
shall have been entered on the books of the parish one month
previous as a member of the Protestant Episcopal Church,
and shall have contributed to the charges of the parish such
sum as a majority of the vestry of the parish shall have de
clared, not exceeding two dollars annually, is entitled to vote.
The third canon of the diocese has provided, that no part
of a parish shall separate itself from the residue thereof, as
a distinct parish, nor shall any number of members of the
Church in any parish associate themselves as a separate con
gregation therein, without first obtaining leave of the con
vention, who shall judge of the necessity and expediency of
such separation or association. But no parish or congrega
tion, though constituted with such consent, shall be considered
part of the Church in the state without a strict conformity to
the use of the Liturgy of the Church, nor without a compli
ance, in the case of a parish, with the provisions of the Vestry
Act of 1798, or, in the case of a congregation, with those of
an act " to incorporate certain persons in every Christian
ORGANIZATION OF CHURCHES. 241
church or congregation in this state," and the supplements
thereto.
It will be seen that the canon contemplates two cases —
the creation of a separate parish within the precincts of an
established one, and the formation of a new church or con
gregation within a parish. The statute last cited, passed in
1802, by its 10th section, authorized any number of persons,
belonging to any church or congregation, sufficient to build a
place of worship and maintain a minister, to separate from
the church or congregation of which they had formed a part,
and to erect a house of worship, and employ a minister of
their own; and, by the 12th section, so much of the act for
the establishment of vestries for each parish, as was incon
sistent with this section, was repealed.
In the convention of 1844, it was held, that these statutes
did not impair the power of the convention to prescribe any
regulations for the admission of a new church into union with
itself. The distinction was taken, and admitted by all, that
while the Church could not prevent any body of individual
members from associating under this act. it could refuse
O /
admission into union to such an association, unless it submit
ted to the canonical regulations of the Church. Among these
is the entire right of the convention to judge of the propriety
of the new organization, sanctioned by the Vestry Act, and
embodied in the canon before mentioned.
It appears, that when a congregation is organized under
the act of 1802. they may select not less than five nor more
than thirteen persons, who are constituted a body politic and
corporate, to act as trustees, upon being duly registered ; and
there are various provisions to provide for their succession,
and to regulate their powers. All the male persons above
twenty-one years of age, belonging to the church or congre
gation, may vote for these trustees. (§ 2.) Perhaps the third
section qualifies this, where Episcopalians elect.
242 ORGANIZATION OF CHURCHES.
No part of the Vestry Act of 1798 is repealed, except (as
before mentioned) that portion which is inconsistent with the
10th section, and a clause authorizing wardens to act as offi
cers of the peace. It is presumed, therefore, that there may
be an organization of a new church either under the Vestry
Act, or the Act of 1802. Among the documents set forth in
the late compilation of the laws affecting the Church in Mary
land, is the form of an organization under the Act of 1802,
recommended by the convention. "Whether a congregation,
duly established under the Vestry Act, can substitute an in
corporation under the Act of 1802, I am not prepared to say.
The only other state whose enactments I shall advert to
is Pennsylvania. By a statute of 17P1, and a further act of
1841, any number of persons, who mean to associate for any
charitable, literary, or religious purpose, with the powers and
immunities of a corporation, may prepare an instrument in
writing, specifying the objects, name, &c., intended. This is
to be presented to the Court of Common Pleas or Supreme
Court. Certain preliminary measures, by advertisement, &c.,
are to be taken ; and if the object and conditions appear to
the Court to be lawful, and not injurious to the Common
wealth, the Court directs the instrument to be recorded, and
the applicants are admitted to be a corporation. (DUNLOP'S
Ed. Laws, 132, 824.)
The first election under the statute of New-
FIEST ELECTION
York, is not only for the purpose of incorporating
the congregation, but "of electing by a majority of voices
two churchwardens and eight vestrymen, and to determine
on what day of the week, called Easter week, the said offices
of church wardens and vestrymen shall cease, and their suc
cessors in office be chosen." (Act 1813, $ 1.)
" Notice of the first election shall be given in
NOTICE OF
FIRST ELECTION ^Q *'}mQ °^ morning service on two Sundays pre
vious thereto by the rector, or if there be none, by
ORGANIZATION OF CHURCHES. 243
any other person, belonging to the said church or congrega
tion." (Ibid.)
This notice should be explicit as to all the objects of the
election; viz: the incorporation of the church, the choice of
church-wardens and vestrymen, and the determination of the
day in Easter week on which the officers shall cease, and suc
cessors be chosen. Although the phrase is, that notice be
given "on two Sundays previous," the practical construction
is, that it must be on the two Sundays next preceding the day
of election.
The statute of Wisconsin is in this particular a transcript
of our own. In New-Jersey, notice must be given of the in
tention to form a body corporate ten days previously, by an
advertisement set up in open view at or near the place where
the congregation usually assembles for divine worship, designa
ting the day when, and the place where it is designed to meet
for the purpose.
I do not find any provision in Maryland for a notice where
a new parish is formed, with the sanction of the convention.
By an act of 1823, where there is no vestry in a parish, any
two or more members of the Episcopal Church in it may call
a meeting of the members at the parish church, or if there be
none, at any convenient place in the parish, first giving ten
days notice of the time and place of such meeting, by ad
vertisement in writing set up at the most public places in
such parish, to elect by ballot eight vestrymen.
The notice under the statute of New-York must be given
in the time of morning' service. This may be at any time
previous to its close. And this, with the previous clause, tends
to prove that there must be a minister officiating in order to
render the notice valid.
" The rector, or if there be none, or he be ne-
PRESIDINO OF-
cessarily absent, then one of the churchwardens FK.EB,.
or vestrymen, or any other person called to the
244 ORGANIZATION OF CHURCHES.
chair, shall preside at such first election." (§ 1, Act 1813,
New- York.)
The provision in New-Jersey is, that the rector or minister,
or if there be no rector or minister, or he be necessarily absent,
one of the churchwardens or vestrymen, shall preside at the
meeting. (\ 2, Act 1829.)
In the statute of Maryland, of 1823, before noticed, the
members of the church, when convened as directed, shall
have power to choose a chairman and secretary, the former to
preside at such meeting, and to determine who of the members
convened shall be entitled to vote, and the latter to record or
take minutes of the proceedings. (Act 1823, ch. 189, <§> 1.)
The right of presiding involves the right of determining
upon the qualifications of the voters. Those in New- York are,
as has been seen, very simple for the first election, being
merely that the persons are of full age, and have belonged to
the congregation. The habit of worshipping with it for a
period however brief, appears to be sufficient.
ELECTION AND " The election shall be determined by a majo-
CERTIFICATB. rjf,y of voices ; and the presiding officer, together
with two other persons, shall make a certificate, under their
hands and seals, of the churchwardens and vestrymen so
elected, of the day of Easter week so fixed on for the annual
election of their successors, and of the name or title by which
such congregation shall be known in law.
" This certificate, being duly acknowledged or proved, by
one or more of the subscribing witnesses, before one or more
of the Judges of the Supreme Court, or one of the Judges of
the Court of Common Pleas, of the county where such church
or place of worship of such congregation shall be situated,
shall be recorded by the Clerk of such county, in a book to
be by him provided for such purpose." (Act 1813, N. York,
§ I.) (Note 1.)
So, in New- Jersey, by the second section of the statute of
ORGANIZATION OF CHURCHES. 245
1829, the congregation, having met at the time and place ap
pointed, and appointed a secretary, " shall proceed, by a vote
of the majority of those present, to designate the corporate
name or title by which the church shall be known, which
shall be in the manner and form as follows : — ' The Rector,
Wardens and Vestrymen of Church in .' The
congregation shall then choose two wardens, and not more
than ten nor less than five vestrymen, and shall also fix and
determine the day annually on which elections of officers
shall take place. A certificate of these proceedings, under
the hands and seals of the president and secretary of the
meeting, shall be transmitted to the Clerk of the Court of
Common Pleas of the county, whose duty it shall be to record
the same."
The statute of Maryland, of 1802, after providing, in the
2d section, that the male persons, above the age of twenty-
one, of any church or society, may elect not less than five nor
more than thirteen persons, constitutes such persons a body
politic or corporate, upon being registered as prescribed ; and,
by the 5th section, the time and manner of future elections of
trustees is to be fixed at the first election, as well as the name
or style of the corporation. Thereupon, the plan, agreement,
or regulation, is to be entered in a book to be kept by the
corporation, and the same shall be acknowledged by the
trustees before mentioned, and certified by one of the Judges
of the General Court ; and the same, so acknowledged and
certified, shall be filed, by the trustees, with the Clerk of the
County Court where the said church or congregation, or the
greater part of them, shall reside, within six months thereafter.
I judge, from an examination of the Journal g 2
of Mississippi as late as 1847, that there is no ARTICLES OF
statute of the State for the incorporation of reli- ASSOCIATION.
gious societies. The first canon provides for the case in this
246 ORGANIZATION OF CHURCHES.
manner : " Whenever any number of persons shall associate
to form an Episcopal congregation, they shall adopt articles
of association for their government, in which they shall ac
knowledge and accede to the constitution, canons, doctrine,
discipline, and worship of the Protestant Episcopal Church in
the United States, and the constitution and canons of the
Episcopal Church in the diocese of Mississippi ; they shall as
sume a suitable name by which their church or parish shall
be designated, and appoint not less than three nor more than
eleven vestrymen and two wardens.
A certified copy of the articles of association, and of the
proceedings at their adoption, shall be laid before the conven
tion, and if approved by that body, delegates from that con
gregation or parish may take seats in the convention, and the
congregation shall be considered as united to the convention,
and subject to its decision.
Every parish so organized shall annually on Easter Mon
day, or as soon afterwards as may be, elect the same number
of vestrymen, who shall, as soon as may be, upon their elec
tion, assemble and appoint two wardens, a register, and
treasurer.
It shall be the duty of the rector, agreeably to the ancient
usage of the Church, to preside in all parish and vestry meet
ings ; but in case of his absence, one of the wardens shall
preside."
The form of an organization of a parish is this : " "We the
subscribers, assembled for the purpose of organizing a parish
of the Protestant Episcopal Church in the town of , coun
ty of , and state of Mississippi, after due notice given, do
hereby agree to form a parish, to be known by the name of
church, and as such do hereby acknowledge and accede to
the constitution and canons of the Protestant Episcopal Church
in the United States of America, and the constitution and
canons of the same Church in the diocese of Mississippi, and
ORGANIZATION" OF CHURCHES. 247
we do accordingly now appoint [not less than seven, nor more
than eleven persons, naming them,] to be the first vestrymen
of the church, and [ten persons, naming them,] to be the first
wardens, to continue in office until Easter Monday in the
year , and until others be chosen in their place ; and an
election of vestrymen shall hereafter be held on Easter Mon
day of each successive year, or as soon thereafter as may be.
Witness our hands," &c.
By the fourth article of the constitution of that diocese,
new parishes may be admitted into union with the convention
on motion by a majority of votes ; provided they shall have
laid before the convention written evidence subscribed by the
wardens and vestry that they are duly organized, and accede
to the constitution and canons of the Church.
The proceedings in Missouri appear also to be by articles of
association. I have not found any statute of the state upon
the subject. These articles are drawn up much in detail, and
contain several important, and some admirable provisions for
government.
In two of the dioceses, (Illinois and Wisconsin,) there is
an incorporation act of the state, and also a regular form of a
parochial organization. In the former there is a statute for
the incorporation of religious societies, (Revised Code, 120,)
and by the third section of Canon 6, the vestry shall be con
sidered trustees of their respective churches in accordance
with the provisions of that law. By the fourth Cation, the
form of a parochial association is established. Each parish
organized according to it is to report the fact to the secretary
of the convention, certified by the minister under whose di
rection the organization took place. And by Canon 5, upon
an application for admission into union with the Church, the
vestry is to submit the certificate of organization signed by
one of the wardens or the clerk of the vestry ; and also a
certificate of the Bishop, or in case of his absence or of a
248 ORGANIZATION OF CHURCHES.
vacancy in the Episcopate, of the major part of the Standing
Committee, that he or they approve of the organization of
such Church. (Journal, 1847, p. 13-14.)
In the diocese of Wisconsin, the system of government is
very complete. The constitution, after declaring the adher
ence of the Church in the diocese to the constitution and can
ons of the Greneral Convention, provides for annual conventions,
the members, president, and officers of the same, the mode
of acting and determination, the Standing Committee, dele
gates to the Greneral Convention, for a Special Convention, the
election of a Bishop, admission of parishes and further altera
tion of the constitution. The canons regulate various matters
of discipline, particularly the trial of a clergyman; and there
is also the constitution of a parish, in which is a clause de
claring its recognition of the constitution and canons of the
General and of the Diocesan Convention — providing for the uses
of church buildings, the authority and duty of the rector and
minister in various particulars, of the wardens, and vestry
men, the annual elections, vestry meetings, officers of the
vestry, and for alterations. Many of these regulations are
noticed in the course of this treatise.
§ 3. By the Statute of New- York, the persons quali
fied as mentioned in the act, shall in every year
after the first election, on the day in Easter week
which has been fixed for that purpose, elect church
wardens and vestrymen.
"Whenever a vacancy shall occur before the stated annual
election, by death or otherwise, the trustees (the vestry
proper) shall appoint a time for holding an election to supply
such vacancy, of which notice shall be given in the time of
divine service, at least ten days previous thereto.
ORGANIZATION OF CHURCHES. 249
These annual elections must be holden immediately after
morning service. The rector, if there be one, is to preside at
these elections. If there be none, or he be absent, one of the
churchwardens shall preside, receive the votes of the electors,
and be the returning officer. The presiding officer must en
ter the proceedings in the book of minutes of the vestry, and
sign his name thereto, and shall offer the same to as many of
the electors present as he shall see fit, to be by them also
signed and certified.
The statute of 1819, before referred to, dis-
QUALIFICATION
pensed for the first election with the qualifications OF VOTERS-
prescribed in the act of 1813, but expressly pro
vided, that no person not possessing these qualifications should
be permitted to vote at any subsequent election of wardens
and vestrymen.
The persons qualified are male persons of full age, who
shall have belonged to the congregation or church for the last
twelve months preceding the election, and shall have been
baptized in the Episcopal Church, or shall have been received
therein either by the rite of Confirmation, or by receiving the
Holy Communion, or by purchasing or hiring a pew or seat in
said church, or by some joint act of the parties and the rector,
whereby they shall have attached themselves to the Protest
ant Episcopal Church.
The qualifications are, therefore, 1st, The being of full
age, belonging to the Church for the preceding twelve months,
and baptism in the Church. 2d, The same extent of connec
tion with the Church, and if not baptized in it, then a recep
tion therein by confirmation, or communing, or purchasing
or hiring a pew or seat, or some other joint act showing that
the party has attached himself to the Church.
In Maryland, by the Vestry Act, the elections
J J TIMES op-
are to be held on every Easter Monday, but if ELECTIONS
Easter Monday is suffered to pass without an
election, then it may bo held on any other day appointed for
250 ORGANIZATION O $ CHURCHES.
that purpose at any day after, although it may be in a sub
sequent year.
Notice of such election must be given by the rector im
mediately after divi le service, on two succeeding SuiJsys;
and if no rector, then by any two vestrymen, or of those per
sons who last possessed the powers of vestrymen, by writing
set up at the door of che church ten days before the day of
meeting. The qualifications of voters at any future election
are the same as those prescribed for the first.
So in this canon it is provided that in case there should ba,
from any cause, no election at such annual period, then the
officers of such church or congregation shall hold over until
the next annual election, or until a special election shall be
called by such vestry, or church, or congregation, which may
be done by notice to be given as in case of an election to fill
vacancies.
By the 15th section of the New- York Statute, no religious
corporation shall be deemed to be dissolved for neglecting to
hold elections on days before or after any moveable feast ob
served by such Church, the intervening time between such
elections being more than a solar year.
And by the 3d section of the act of February, 1826, it
shall be lawful for the members of any church, congregation
or society, qualified to vote for trustees, wardens, or vestry
men, or for a majority of them, at any stated annual meeting
to appoint and fix any day in the succeeding year as the day
on which the choice of officers of such church, congregation,
' O O '
or society shall be held ; and the elections held on that day
shall be as valid for all purposes, as if the same had been
made on the day formerly appointed for that purpose.
By the 4th canon of Missouri, (1847,) the parishioners
are to elect a vestry of not less than three, nor more than
eleven members. Out of these the rector appoints a senior
warden, and the vestry a junior warden.
TRUSTEE* OP A CHURCH. 251
In New Jersey, by Canon 6, any person of good general
character may be eligible to office in any parish, or entitled
to vote at an election of officers, who professes to adhere to
the Protestant Episcopal Church, and contributes to is sup
port in. the mode prescribed in his particular congregation,
and who shall have been a worshipper in said church six
months next before the election.
The qualifications of voters in Maryland at aU subsequent
elections are the same as those required at the first. (See
ante, p. 251.)
TITLE III.
THE VESTRY AS TRUSTEES POWER AND OFFICE.
The election being duly had, certified and re- § !•
corded, the Statute of New- York proceeds to con- CORPORATE
stitnte a corporation as follows : " The church
wardens and vestrymen so elected, of themselves, but if there
be a rector, then, together with the rector of such church or
congregation, shall form a vestry, and be the trustees of such
church or congregation, and such trustees and their succes
sors shall thereupon by virtue of this act be a body corporate
by the name or title expressed in such certificate."
Two points of importance are here to be noticed. First ,
That if there is a rector, he, with the wardens and vestry,
constitute the vestry. Each and all must exist to form that
body. If there is no rector, then the wardens and vestrymen
form it. With this the Statute of New Jersey exactly agrees.1
Next, These persons, that is, rector, wardens and vestry-
1 " The rector, wardens, and vestrymen appointed as aforesaid, shall
be a body corporate and politic in law and in fact, to have continuance
for ever under the same restrictions, and with the same rights and privi
leges as are expressed in the act to incorporate trustees of religious
societies, passed the 12th of June, 1799 — provided, nevertheless, that if
at any time the church be without a minister or rector, the same rights
and privileges shall be vested in the wardens and vestrymen."
The Statute of Wisconsin is the same in this particular as that of
New-York.
252 TRUSTEES OF A CHURCH.
men in one case, and wardens and vestrymen in the other,
are the trustees of the church, and constitute the body cor
porate.
By the 2d section of the vestry act of Maryland, the eight
vestrymen chosen at the election, " with the rector of the parish
for the time being, shall be deemed and considered the vestry
of the parish for the ensuing year ; and the rector of the
parish shall always be one of the vestry." In the ninth section
they are designated as the trustees of the parish.
The Act of 1785 of Virginia, and the ordinance of the con
vention, after that act was repealed, contained a similar pro
vision. See also the statute of the 3d of February, 1842.
§ 2- The statutes which create an incorporation
XENERAL ejt|ier particularly of a vestry in cases of Episco-
POWERS.
pal churches, or trustees generally, give the usual
powers to take and hold real estate, to manage all the property
and temporalities of the body, to have succession, and the
other powers attendant upon the formation of a corporation
aggregate.
Tims by the Act of 1813 of New-York, (§4) the trustees
of every church or society organized under it are authorized
and empowered to take into possession and custody all the
temporalities of such church, whether the same consists of
real or personal estate, and to hold and enjoy all rights and
privileges, debts and demands, and all churches, meeting
houses, parsonages, and burying places, with the appurtenan
ces, and all estates belonging to such church or society, and
to demise, lease, or improve the same for the use of such
church or society, or other pious uses — also to repair and alter
their churches and meeting-houses, and to erect others if
necessary; to erect dwelling houses for the use of the minister,
and school houses for the use of the church. They have also
puwer to regulate and order the renting the pews, and the
perquisites for breaking the ground in the cemetries or parish
TRUSTEES OF A CHURCH. 253
churchyards, and all other matters relating to the temporal
concerns of such church or congregation.
By the ninth section of the vestry act of Maryland, the
vestry of each parish, for the time being, as trustees of the
parish, shall have an estate in fee-simple in all churches and
chapels, and in all glebes and other lands, and shall have a
good title and estate in all other lands or property heretofore
belonging to the Church of England, or which shall hereafter
belong to the said Church, now called the Protestant Episcopal
Church in Maryland ; and it shall be lawful for such vestry so
to manage and direct all such property as they may think
most advantageous to the interest of the parishioners ; and
they shall also have the property in all books, plate, and other
ornaments belonging to said churches or chapels, or any of
them.
The 28th section gives the right of succession, and of hold
ing lands and of leasing and managing them, and to take all
money or goods given or bequeathed to them, provided the
clear annual value shall not exceed $2000, exclusive of rents
of pews, collections in churches, funeral charges, and the like.
By the 2d section of the act of Wisconsin, any church or
corporation incorporated under it, shall have power to purchase
and hold, or lease any real estate for the site of a church, or
house of public worship, and suitable yards or grounds for the
same, and for a parsonage and school house, and to erect all
such buildings thereon proper and suitable for such church or
house of worship and school house, and to purchase or take by
gift or otherwise any real estate or other property, and to sell,
dispose of and lease the same. The church is restricted from
holding real estate, the annual value of which shall exceed
five thousand dollars, except the site of the church, parsonage
and school house.
They shall also have power to sell, rent or otherwise dis
pose of all slips, pews or seats in such church, and to rent,
17
254 TRUSTEES OF A CHURCH.
sell, or otherwise dispose of all the real estate of such church
or congregation ; to sue for all rents, demands or dues ; and
generally to manage all the fiscal affairs of the Church.
And in New- Jersey, the act of June 1799, adopted in that
of 1829, gives the trustees of a religious incorporation general
powers to take and hold land, goods, &c., not exceeding
$2000 in annual value, and to make such rules and ordi
nances and do every thing needful for the good government
and support of the Church.
By the common law, the fee of the glebe and
ALIENATION ^anc^s °f *ne Church, vested in the incumbent, and
of course his union in any alienation was indis
pensable. Justice Story, in. Terry vs. Taylor,1 thus states the
law: "At a very early period the religious establishment of
England was adopted by the colony of Virginia, and of course
the common law upon that subject, so far as it was applicable
to the circumstances of that colony. The minister of the
parish was, during his incumbency, seized of the freehold of
the inheritable property as emphatically persona ecclesicz, and
capable, as a sole corporation, of transmitting that inheritance
to his successors." It was decided in the case, that as there
was no statute which invested the fee in the vestry alone,
they could not alien without the rector's consent, and a sale
could not be made unless he joined in it.
There were, however, at the common law, some restraints
upon the general power of alienation. A rector could not convey
without the consent of the Bishop and the patron ; and the
Bishop could not do so without the assent of his chapter.2
These restraints proving insufficient, further restrictions
were imposed in a series of statutes passed in the reigns of
1 WHEATON'S Rep., 206.
* See the Constitution of LANGTON cited 2 BURNS, 208; I INS., 144,
and 3 COKE, 75. The rules of the canon law were very express and
guarded upon this subject. See VAN ESPEN De Admin et Alienatione,
Tomel, Tit. 36.
TRUSTEES OF A CHURCH. 255
Elizabeth and Edward the Sixth. In substance these limited
alienations to leases for a definite period, either of 21 years
or for three lives.
In the case of St. Peter's Church vs. De Ruyter, (3 BAR-
BOUR'S Ch. Rep., 121,) Chancellor Walworth held— That by
the common law corporations aggregate, ecclesiastical as well as
lay, had the same right to alienate real estate which they
had the capacity to take and hold, and for the same purposes
and objects as natural persons.1
That the English statutes restraining this right, and limit
ing the duration of leases, formed part of the law of England
at the time of the settlement of the state,' under the charter of
the Duke of York, and probably formed part of the law of the
colony brought by the colonists with them.
That it must have been considered that the law of such
restrictions prevailed in the state from the fact, that by a
section of the act of 1787, it was made lawful for the chan
cellor of the state, if he thought proper upon the application
of any religious incorporation, to make an order for the sale
of any real estate belonging to such corporation, and to direct
the application of the monies arising therefrom to such uses
as the said corporation, with the consent of the chancellor,
should consider to be most for the interest of the society.
I may take the liberty of observing upon this point of the
learned chancellor's decision, that the opinion of the profession
in New- York has generally been, that this section of the stat
ute was not a mode of liberating these corporations from re
strictions, but a mode of restraining what otherwise would
be an unlimited power of alienation.
In many of the dioceses the mode of alienation has been
made the subject of special provision.
In Maryland, the 29th section of the vestry act provides
1 KENT'S Com., 281.
256 TRUSTEES OF A CHURCH
that no vestry shall sell, alien or transfer any of the estate or
property of the Church without the consent of five at least of
their body, of which number the rector shall always be one,
together with the consent of both churchwardens, and in case
there be no rector, then the consent of the Bishop must be
obtained.
By the 8th of the Articles of Association of Missouri, no
conveyance of any lands or tenements belonging to a parish
or association shall be made without a vote of the vestry,
two-thirds being present and concurring.
The act of the legislature of Illinois (Revised Code, p.
120) directs that the trustees may sell and dispose of the real
estate belonging to the church, except such has has been
specially devised or given to it for pious purposes.
In New Jersey, the act of the 12th of June, 1799, adopted
in that of 1829, gives to the trustees of a religious incorpora
tion power to acquire, receive, have, and hold, any lands and
tenements, goods and chattels, not exceeding the annual value
of $2000, and the same, or any part thereof, to sell, assign,
dispose of, and alien.
But I apprehend in that state no alienation would be valid
without the union of the rector. By the act of 1829, when
there is a rector, he, with the wardens and vestrymen, con
stitute the Board of Trustees, in which Board is vested the
power of disposition.
By a provincial statute of Massachusetts, 28 Greo. II., cap.
9, re-enacted in 1786, no alienation of parsonage lands is
valid in the case of a minister of an Episcopal church, with
out the consent of the vestry.1
And the regulation in Virginia (Canon 17) is, that the
vestries shall hold all glebes, lands, parsonage houses,
churches, books, plate, or other property now belonging, or
hereafter accruing to the Protestant Episcopal Church of the
1 2 MASS. Rep. 500, Weston vs. Hunt.
TRUSTEES OF A CHURCH. 257
Diocese of Virginia, as trustees for the benefit of the parish or
church for whose use the same were, or shall hereafter be
purchased, or otherwise obtained, and may improve, demise,
or otherwise dispose of the lands or houses allowed for the
minister's habitation or use, with the minister's consent ; if
there be no minister, with the consent of the Bishop, or in
case there be no Bishop, and the Episcopal office be vacant,
then not without the consent of the Standing Committee.
But when there are trustees, under the act of the legislature
passed Feb. 3, 1842, authorised to hold real property, such
real property shall not be subject to the provisions of this
canon.
The right and power of the trustees of a church
over the pews has been discussed and judicially RIGHT OVER
determined in several cases, especially in New- PEWS.
York. The conclusions appear to be these :
That the right of property in the pews of a church vests
in the trustees, the right of use and occupation at all custom
ary times being in the purchaser. The latter may maintain
an action on the case for a disturbance of this right. The
power of destroying the pew when necessary for carrying out
proper reparations of the church is in the trustees ; and they
may sell the church without the owner of the pew being able
to prevent it, and the question of remuneration, or an equiva
lent right to a pew in a new church, if erected, must be left
to subsequent adjustment.1
In the case in Vermont, cited in the note, a distinction is
taken, that where the house of worship is taken down for
convenience or taste, the pew-holder is entitled to compensa
tion ; but if taken down as matter of necessity, because it has
1 Kearny vs. St. Peter's Church, 2 EDW. Rep. 612. In the matter of
the Brick Presbyterian Church, 3 EDWARD'S Rep. 156. Bronson vs.
Wood, Sup. Ct., N.York, 7 Jud. District, Sept. 1, 1849, Law Reporter,
Boston. Kellogg vs. Dickinson, 18 Vermont Rep. 266. Daniel vs.
Wood, 1 Pick. 102.
258 TRUSTEES OF A CHURCH.
become ruinous, and unfit for the purposes, no compensation
is to be made.
In Bronson vs. Wood, the trustees of St. Peter's Church,
Auburn, had granted and sold a pew by its number to Wood,
his heirs and assigns. The court observed, that although its
language would import a conveyance in fee simple, such a
conveyance would be void, as the trustees had no power to
make it ; they could only, under the statute, demise, lease,
and improve the same — and have power to regulate and order
the renting of the pews. The pew-holder acquires a right of
possession, so that he can maintain trespass against an intru
der ; but this right of possession is in subordination to the
more general right of the trustees in the soil and freehold.1
§ 5. It has been decided in New-York, that where
VAULTS, the corporation possesses land for the purposes of a
cemetry, the trustees may remove the bodies of the dead, and
cannot be prevented upon the application of relatives. (Winat
vs. German Reformed Church, SancPs Ch. Rep., 474.)
By an act of the legislature of 1842, no religious incorpo
ration can mortgage any burying ground without the consent
in writing of three-fourths of the congregation or society ; and
the like consent is required upon a sale before any human re
mains can be removed from any burying ground which has
been used as such within three years.
Where, however, the form of the conveyance of a vault
was such as to pass a right to the land, and not to confer a
mere temporary use and privilege to construct vaults, the pro
perty could not be sold without the consent of the vault
owners. (In the matter of the Presbyterian Church, 3 ED
WARDS, Rep. 168.)
By the 3d section of an act passed March 30, 1850, it
was enacted that the authority given by the " act concerning
1 See also Presbyterian Church vs. Andrews. ZABRISKIE'S N. Jersey
Rep., 330.
TRUSTEES OF A CHURCH. 259
the acquisition of burial places by religious corporations in
the city of New- York," passed April 11, 1842, to purchase,
acquire, and hold land for the purpose of a burial ground or
cemetery, and to erect thereon suitable buildings for purposes
connected with the burial of the dead, is hereby extended to
religious corporations in every part of the state, and such pur
chases heretofore made or hereafter made in the city of New-
York or elsewhere, and the erection of buildings thereon as au
thorized by the said act, are hereby confirmed and declared
valid, notwithstanding any restriction contained or supposed
to be contained in the " act to provide for the incorporation of
religious societies," passed April 5, 1813, or in any special
charter of any such corporation.
The members of the vestry hold their office in § 6-
New- York until the expiration of the year for TENURE OF
which they shall be chosen, and until others are
chosen in their stead. In New-Jersey, the first eight sections
of the act of 1799, are by the act of 1829 made applicable to
the Protestant Episcopal Church. By the 4th section, a new
election may be had upon the same notice as is prescribed for
the first elections, either to fill up vacancies, or for the election
of all or any new trustees in place of the others, or of any of
them.
The statute of Wisconsin is the same as that of New- York.
The articles of association in Illinois contain a clause that
the vestry annually elected shall continue in office until their
successors be chosen. That of Missouri is substantially the
same*
" No meeting of the board of trustees shall be
had unless at least three days notice shall be given MEETINGS OF
in writing under the hand of the rector, or one of THE VESTRY.
the churchwardens." [
1 Act of 1813, H-
260 TRUSTEES OF A CHURCH.
In Wisconsin, quarterly meetings are to be held on the first
Mondays of May, August, November, and February ; and
special meetings may be called at such time as the minister
or any two of the members may desire.
So in Maryland, under the vestry act, regular meetings
are held on the same days as in "Wisconsin ; and by the 24th
section of that act, special meetings may be called by the
rector when necessary, but if there be no rector, or he be
absent, or refuse, or neglect to call a meeting, then any two
of the vestry may summon it.
A very important provision is found in the statute of New-
York, which I do not trace in any other state or diocese. No
board of trustees shall be competent to transact any business
unless the rector, if there be one, and at least one of the
churchwardens, and a majority of the vestrymen be present.
In Wisconsin, the provision is that "no such board shall
be competent to transact any business, unless the rector, or
one of the wardens and a majority of the yestrymen be
present." (Act of 1847, § 1.)
By the vestry act of Maryland, any four vestrymen to
gether with the rector, if he shall attend, if not, any four
without him, s-hall be a sufficient quorum for the transaction
of any business whatever, which they are authorized to do by
the act, and whatever shall be thus done by a majority of
such quorum, or of the members attending, if more than
above directed, shall be valid and obligatory as if done by the
whole vestry • provided that due notice of ail adjourned and
special meetings shall be given to all the members of the
vestry. (§ 7.)
§ 7. By the 10th section of the act of 1813, every
DUTY AS religious incorporation in New- York, Albany and
WT' Schenectady, was directed to render an account
and inventory of their property, every three years, to the
chancellor or one of the justices of the Supreme Court. By
TRUSTEES OF A CHURCH. 261
the 1st section of the act of March 30, 1850, no church or reli
gious society now incorporated shall be deemed dissolved, nor
shall any of its rights or privileges be impaired or affected by
reason of the trustees or other persons entrusted with the
management of its temporalities, having omitted to exhibit an
account and inventory of the real and personal estate belong
ing to said church or society, or of the annual income, or reve
nue arising therefrom, and any forfeiture incurred by reason
of any such omission is hereby waived and discharged ; and
no such account and inventory shall hereafter be required
from any incorporated church or religious society, unless the
annual income of its property shall exceed six thousand
dollars.
An important provision was adopted in the statute of
March, 1850 : " "Whenever any religious incorporation incor
porated under the ' act to provide for the incorporation of reli
gious societies,' passed April 5, 1813, or by any special charter,
shall deem it necessary or expedient for the accommodation of
its members, in consequence of their numbers or dispersed
habitations or otherwise, to increase the facilities for public
worship, the vestry or trustees thereof may purchase and hold
grounds in the same village, town or city, and may erect
thereon suitable associate meeting houses or churches, or con
venient chapels, or may hire or purchase and hold any such
ground with suitable buildings already erected thereon for the
like purpose, notwithstanding any restriction contained or
supposed to be contained in the said act, or in any such char
ter, and the persons statedly worshipping in any such asso
ciate meeting-house or church, or in such chapel, may, with
the consent of the vestry or trustees of said corporation, be
separately organized and incorporated."
262 THE RECTOR.
TITLE IV.
THE RECTOR.
In the present connection, nothing is properly to be con
sidered except the powers and rights of the rector in connec
tion with the temporalities of the church or parish, the use of
the building, &o., and the management of its secular affairs.
Many of these topics are necessarily discussed under other heads.
§ 1- The right of presiding at a vestry meeting is re
cognised in the statutes of various states, and in
PRESIDE.
the canons of most of uthe dioceses. It may be
stated as a universal rule.
By the provision of the Statute of New- York, the rector,
if there be one, and if not, then the churchwarden present, or
if both the churchwardens be present, then the churchwarden
who shall be called to the chair by a majority of voices, shall
preside at every meeting of a board, and have a casting vote.
($1, Act 1813.)
In Maryland, the rector shall preside in the vestry, collect
the votes, and shall, upon an equal division of those present,
have a vote, except where he is in any manner particularly
interested.1 In Ohio, his right to preside is implied in the
2d canon of 1847. In Mississippi, and other dioceses, it is
recognized in the canons.
The right of presiding at a meeting of parishioners in
vestry assembled is an undoubted rule of the English law,
This was the subject of an elaborate decision of Sir John Ni-
chol in Wilson vs. Mackmatho. (3 Phillimore 67.)
" The minister is not, in consideration of law, a mere in
dividual of a vestry ; nor is he in any instance so described.
On the contrary, he is always described as the first, and as
1 § 8, Act 0/1798. The 6th section of the 9th Canon of Virginia is
exactly the same. The 1st section of the 3d Article of Wisconsin is as
follows : The rector is ex-officio president of the vestry and of the con
gregation, and has the casting vote in case of a tie, on all questions
brought before it.
THE RECTOR. 263
an integral part of the parish. The form of citing a parish
proves this position, namely, 'the minister, churchwardens
and parishioners,' he being specially named."
" So far, therefore, from being a mere individual, the proper
description of a parish in vestry assembled is, " the minister,
churchwardens and parishioners in vestry assembled." The
minister is denominated the rector parochice, the presses ec-
cclesiasticus. The vestry is an ecclesiastical meeting of an
ecclesiastical district, namely, a parish — it is held in an ec
clesiastical place, in the church or in a room which is part of
the church, part of the consecrated building, from which the
meeting itself takes its name of vestry, as being held in the
room where the priest puts on his vestments. It meets for an
ecclesiastical purpose ; for though the sustentation of the poor
has become of modern times more of a [temporal concern, yet
anciently it was a matter immediately of ecclesiastical duty
and superintendence.
In these meetings, then, of the parish, assembled in the
church for an ecclesiastical purpose, that the rector parochial
should not preside, but be considered as a mere individual
would be most strangely incongruous! On sound legal
principle, he is the head and presses of the meeting.
To pronounce, then, against a right thus founded in usage,
and supported by reason, convenience and propriety, would
require some very clear and decided authority negativing the
right, and establishing a different rule." See also Baker vs.
"Wood, 1 Curteis 522, and Rex vs. D'Oyly, 4th Perry &
Davison, 58.
"While it may be stated as a general rule, that
the title and legal estate, with the collection and
. . RIGHT TO THE
enjoyment of the rents and profits, is in the vestry GLEBE &c
acting in most dioceses as trustees under an act of
incorporation, it remains to be seen what are the particular
264 THE RECTOR.
rights of the rector or minister in the property of the church,
or in the church edifice, or the appurtenances.
These may sometimes conflict with the general right and
power of the vestry.
In some of the dioceses, there are special regulations upon
this subject.
By the 15th section of the vestry act of Maryland, the
vestry may choose one or more ministers to officiate, for such
time as they shall think proper, and may agree and contract
with such minister for his salary, and respecting the use and
occupation of the parsonage-house, or any glebe or other land
or property belonging to the parish, and on such terms and
conditions as they may think reasonable ; and their choice and
contract shall be entered among their proceedings. By the
10th section, if any rector shall commit waste on any glebe-
land, or other land belonging to the vestry of his parish, or if
he shall do any injury to the parsonage, or to his parish-library,
he shall be liable to pay treble damages, to be recovered of
him by the vestry in their corporate name, in the same man
ner as if he was not one of the vestry.
The second section of the third article of the constitution
of a parish in Wisconsin provides, that the churchbuilding
shall be open to the minister for public common prayer, cate
chetical or other religious instruction, for marriages, baptisms,
funerals, and all other rites and ceremonies authorized by the
Protestant Episcopal Church, at such times as he may deem
proper.
; It appears to me that a true rule is stated in a decision
reported by Dr. Hawks, as having taken place in Virginia in
the year 1748. Under an act of 1727, " every minister re
ceived into any parish by the vestry " was entitled to his salary.
The usual mode of proceeding was for the vestry to receive
some clergymen recommended by the commissary and go
vernor.
THE RECTOR. 265
By direction of the vestry of Lunenburg parish, an in
dividual entered upon the glebe lands contrary to the wishes
of the incumbent, the Rev. Mr. Kay. The latter brought an
action of trespass against the intruder, and in 1784 the suit
came before the general court for judgment upon the single
point whether the bare reception of a minister by the vestry
under the act of 1727, there having been no formal induction
in the case, would enable the minister to sustain an action of
trespass against one who entered on the glebe lands by order
of the vestry. Judgment was finally rendered for Mr. Kay on
this point, but it was by a divided court.
The phrase made use of in the statute of New- York, is
that the vestry shall have power to call and induct a rector
to such church or congregation as often as there shall be a
vacancy therein. I apprehend that this phrase is used in the
sense which it had received in the practice of the colony of
New-York. The governor issued a letter of induction after a
minister had been called to a church ; and the legislature in
tended to substitute the vestry for the governor.1
It cannot be necessary for a compliance with the statute,
that the formal proceedings of an induction should be pursued.
It is presumed that a delivery of possession, or acquiescence
in its being taken, will suffice.
The call then — the actual use of the church for the ap
pointed services — the actual occupation of a parsonage or
glebe would, it is presumed, be equivalent, in a civil tribunal,
to an induction attended with all its formalities ; and what
ever rights such an induction would have conferred, will be
possessed without it.
Difficulties may attend the solution of*^rious questions
connected with this subject. It is thought, however, that
some general principles are warranted by the law as it stands,
and will furnish a safe guide.
1 See DR. BERRIAN'S History of Trinity Church^ p. 69-75, also p 162.
266 WARDENS AND VESTRYMEN.
The law of the Church at large, and especially the law of
the Church of England, the common law itself, vested the
right over the church edifice and its employment, in the rec
tor. The authority of churchwardens was subordinate to his.1
"When the Church avails itself of an act of incorporation, or
other statute of the civil power, it is bound to take it in its
true extent and meaning, but no further. The title, then, to
the church, and all church property, is in the trustees, collect
ively, for all corporate purposes ; but there is another class of
purposes purely ecclesiastical, as to which the statute did not
mean to interfere or prescribe any rule. These are to be con
trolled by the law of the Church.
One conclusion seems, for example, deducible from these
principles — that the control and possession of the church edi
fice upon Sundays, and at all times when open for Divine
Services, appertains exclusively to the rector. This, it seems
to the author, is implied in his call, essential to his office, and
must be paramount.
TITLE V.
WARDENS AND VESTRYMEN.
Wardens and vestrymen are repeatedly referred to in the
canons of the General Convention, and in almost every dio
cese are constituent parts of the organization of a church.
Indeed, in several dioceses, a church cannot be organized for
legal purposes, or be admitted to union with a convention,
without wardens and vestrymen. Such is the case in New-
York, Western New- York, and Wisconsin. The Statute of
New- York requires a vestry for the act of incorporation, and
the union with the Diocesan Convention depends upon the
production of a certificate of such incorporation. So in nu-
1 Lee vs. Matthews, 3 HAGGARD, p. 173. 1 LEE'S Rep., 129. Hutch-
ins vs. Denziloe, 1 HAGG. C. JR., 173.
"WARDENS AND VESTRYMEN. 267
merous instances the delegates to a convention must be chosen
by a vestry, although there are cases in which this does not
necessarily imply wardens as well as vestrymen.
Bishop Jarvis of Connecticut, in his address to the con
vention of 1807, says, that " a practice had been introduced
of choosing a committee to supply the place of wardens and
vestry ; and in the room of parish, of substituting the word
society. I have before observed, that as far as the law extends
to us, the wardens and vestry have all the powers of what is
termed a Society's Committee. As these are, therefore, the
ancient ecclesiastical officers of a parish, to substitute a com
mittee in their stead is to needlessly change the principles of
the Church, and to adopt those which are independent and
congregational." (Journal Connecticut, 1807.)
In New Jersey, in the year 1804, Dr. Croes, afterwards
Bishop of that diocese, in conjunction with the Rev. Andrew
Fowler, made a report upon the duties of churchwardens and
vestrymen, which Bishop Doane speaks of as embodying the
whole practical wisdom of the subject. In that report, the
duties of these officers are minutely set forth, and will be
hereafter adverted to. At some period between that year and
1811, a resolution was adopted which was in force in 1827,
and I believe now prevails, to the following effect ; " That in
the opinion of this convention, the regular mode of church
government of congregations in the Protestant Episcopal Church
is by a body composed of a minister, (styled in this state a
rector,) churchwardens, and vestrymen. And this formality
of two wardens and a vestry will be expected of all congrega
tions which shall hereafter apply to be admitted in convention.1
The duties of churchwardens, and their office § i.
in the Church of England, are thus described by WARDENS.
Lord Stowell :2 " I conceive that their duties were originally
1 See Journal of 1827.
8 ST. LEE'S Reports, 129.
268 WARDENS AND VESTRYMEN.
confined to the care of the ecclesiastical property of the parish,
and over which they exercise a discretionary power for certain
purposes. In all other respects it is an offioe of observation and
complaint, but not of control with respect to divine worship.
So it is laid down in Ayliffe, in one of the best dissertations
on the duties of churchwardens, and in the canons of 1691.
In these it is observed that the churchwardens are appointed
to provide the furniture of the church, the bread and wine of
the holy Sacrament, the surplice and the books necessary for
divine worship, and such as are directed by law ; but it is the
minister who has the use.;
" If the minister introduces any irregularity into the ser
vice, they have no authority to interfere, but may complain
to the Ordinary. I do not say there may not be cases in
which they would be bound to interpose. In such cases they
may repress, and ought to repress, all indecent interruptions
of the service, and are the most proper persons to repress
them, and they desert their duty if they do not. And if a
case could be imagined in which even a preacher himself was
guilty of an act grossly offensive, either from natural infirm
ity or disorderly habits, I will not say that the church
wardens and even private persons might not interpose to pre
serve the decorum of public worship. But that is a case of
overbearing necessity that supersedes all ordinary rules. . . .
They have only custody of the church under the minister. If
he refuse access to the church on fitting occasions, complaint
must be made to higher authority. Churchwardens are the
guardians and keepers of the church, and representatives of
the body of the parish."1
By the fourth article of the constitution of a parish in
1 See also Lee vs. Mathews, 3 HAGG. Rep. 173. By one of the laws
of the Duke of York. 1664. churchwardens were to present to the ses
sions, at a fixed period, all offences which had come within their
knowledge — profaneness, Sabbath breaking, and other sins. (Collect.
N. Y. Hist. Society, vol. 2, p. 334.)
WARDENS AND VESTRYMEN. 269
Wisconsin, it is recommended that the wardens, as advisers
of the minister, be communicants. They are to have a care
that the church building be kept from all secular or other uses
not authorised by the second article, and that it be kept in
good repair, as becometh the house of (rod.
The wardens, according to seniority, are to preside at all
meetings of the vestry and of the congregation ; and by the
fifth section, they are to give notice to the Bishop of any of
fence of a clergyman.
In the report made to the Convention of New Jersey be
fore mentioned, the duties of wardens and vestrymen are thus
stated :
" The duties of churchwardens are :
1. To provide for the churches of which they have the
care, a Prayer-book and Bible of suitable size at the expense
of the parish.
2. To make the collections which are usual in the parishes.
3. To provide, at the expense of the congregation, a suffi
cient quantity of fine white bread, and good, wholesome wine,
for the celebration of the Lord's Supper.
4. To provide a proper book, at the charge of the parish,
in which shall be written by the rector, or in case of vacancy
by one of the wardens, the name of every person baptized,
married and buried in the church, and the time when such
baptism, marriage and burial took place.
5. To present to the Bishop of the diocese, or, if there is
no Bishop, to the chairman of the Standing Committee of the
Church in the state, every priest and deacon residing in the
parish to which they belong, who has voluntarily relinquished
his sacerdotal office, and uses such employments as belong to
laymen.
6. To take care that the church of which they have the
charge be kept in good repair, well glazed, and free from
dirt and dust, as becomes the house of G-od ; that the churoh-
18
270 WARDENS AND VESTRYMEN.
yard be decently fenced, and to cause that order be preserved
during divine service.
7. To diligently see that the parishioners resort to church
on Sundays, and there continue the whole time of divine ser
vice ; and to gently admonish them when they are negligent.
8. To prevent any idle persons continuing in the church
yard or porch during divine service, by causing them either
to enter the church or depart — and to prohibit the sale of any
thing in the yard.
[ 9. To give an account to the corporation of the church, if
it has no treasurer, at the expiration of each year, of the
money they have received, and what they have expended in
repairs, &c. ; and when they go out of office, to give a fair
account of all their money transactions relative to the church,
and deliver up to their successors the church property in their
possession.
The duties of vestrymen, or trustees, are :
To transact all the temporal business of their respective
churches — to collect the monies stipulated to be paid to the
minister ; and, at the expiration of any year, if there be a de
ficiency of the sum requisite, to give information thereof to
the congregation, convened for that purpose, and, if necessary,
to enforce the payment of the sum deficient; also, in the ab
sence of the wardens, to do the several duties which are more
particularly assigned to them."
It will be remembered that in England, except
VESTRYMEN *n cases °f special custom, there is no regular dele
gated body known as a vestry. All the parishoners,
when convened in a manner prescribed, and for parish pur
poses, are described as assembled in vestry.1
There were, however, excepted cases of select vestries,
consisting of a limited number of persons chosen by the ratea-
1 WOOD'S Inst.j 90. 2 PHILLIMORE'S Rcp.} 373. ADAM'S Rep.. 139,
WARDENS AND VESTRYMEN. 271
ble parishioners.1 This was the case in London.2 In an act
of parliament (9 Ann, cap. 22) for erecting new churches
near London, a similar system was adopted ; and in the late
act of 2 and 3 Victoria, it is allowed as to all parishes, and
prescribed as to some.
In the colonies, the method of the parishioners acting
through a select delegated body, was used at the earliest pe
riod. In New-York, for example, by the Duke of York's laws
of 1664, it was provided that for the orderly management of
all parochial affairs, eight of the most able men of each parish
be chosen by the major part of the householders to be over
seers, out of which number, the constable and such eight
overseers shall yearly make choice of two to be church
wardens.
And in the act of 24 March, 1693, we find that the min
isters are to be called to officiate by the vestrymen and church
wardens respectively. In the four counties of New- York,
Westchester, Richmond and Queens, the justices were to
summon the freeholders to meet for the purpose of choosing
ten vestrymen and two churchwardens.
In Maryland, by an act of 1692, the free-holders of each
parish were to meet and elect six vestrymen, who were made
bodies corporate to receive and hold property, with power to fill
all vacancies. (HAWKS' Cont. vol. 2, p. 71.) In 1779, an act
to establish select vestries was passed, which was repealed by
the act of November, 1798, next mentioned.
The latter statute is now in force, and is recognized by the
convention of the diocese as part of its system of Church go
vernment. Its provisions are numerous and greatly in detail;
many of which have been before noticed.
1 GIBSON'S Codex. 262. GREY'S System, p. 88. 2 STRANGE, 728.
3 Statute 15, Car. 2, c. 5. See also the Braintree Election Case, 4
MOOR'S Privy Council Rep.
272 UNION WITH A CONVENTION.
So in Virginia, vestries were part of the Church organiza
tion at a very early date.1
In Maryland, the vestrymen are to be elected
BILITY out of the persons qualified to vote. (§ 1, Act of
VESTRYMEN. ^98.)
In New Jersey, by Canon VI, any person being of good
moral character may be eligible to office in any parish, or en
titled to vote at an election of officers, who professes to adhere
to^the Protestant Episcopal Church, and contributes to its
support in the mode prescribed in his particular congregation,
and who shall have been a worshipper in said Church six months
next before the election.
TITLE VI.
UNION OF A CHURCH WITH THE CONVENTION.
The regulations in the different dioceses upon this subject
are very similar. That of Illinois may be taken as an ex
ample :
" To entitle a church hereafter to admission into union
with the Protestant Episcopal Church in this diocese, it shall
be required that the vestry submit to the convention, or to a
committee appointed by it, the certificate of organization,
signed by one of the wardens, or the clerk of the vestry.
" Every organized church, applying for admission into
union with the convention of this diocese, shall also produce
to the convention a certificate of the Bishop, or in case of his
absence, or of a vacancy in the Episcopate, of the major part
of the Standing Committee, that he or they approve of the
organization of such church."
The article in Missouri is nearly the same ; requiring,
however, that notice should have been given to the Bishop or
1 See for example the form of a letter of induction about 7642, in
DR. HAWKS Cont., vol. 1, p. 54.
UNION WITH A CONVENTION. 273
Standing Committee, of the organization having taken place,
three months previous to the convention.
The 12th article of the constitution of South Carolina
directs, that " whenever a church or congregation, not now
entitled to a representation, shall be desirous of uniting with
the convention of the Church in this diocese, they shall apply
by letter to the Bishop, or when there is no Bishop, or he be
absent, to the Standing Committee, stating the due organiza
tion of the church, the election of vestrymen and church
wardens, their means or prospects for the support of a minis
ter, and their willingness to conform to the constitution and
canons of the General Convention, and the constitution and
canons of the convention of this diocese, which are now, or
may hereafter be enacted by authority of the same. And, at
the convention next succeeding the receipt of such application,
the Bishop or Standing Committee shall communicate the
same to the convention for their decision therein. Should the
convention make a favorable decision, the church shall then
be considered as in union."
It was before shown, that the legislature, ever since the
Revolution, exercised the power of dividing and annexing
parishes, or parts of them. I am not aware of any ecclesias
tical regulation in that diocese, which bears upon this subject,
except this canon.
By the 15th canon of the diocese of Pennsylvania,, the
articles of organization, or the charter, if any, are to be sub
mitted to the Bishop and Standing Committee, prior to an
application for admission into union. The approval by both,
of the articles or charter, is necessary. If he or they disap- '
prove them, their reasons are to be stated to the convention.
The whole matter and the documents are referred to a com
mittee, who are to report thereon to the convention, for its
final determination.
The canon of Ohio directs a notice to be given to the
274 UNION WITH A CONVENTION.
Bishop, at least one month before the convention, of the or
ganization having taken place, but does not require that the
approval of the Bishop should accompany the application for
admission.
In several dioceses, also, even such a notice is not required.
Thus, in Mississippi, a certified copy of the articles of associ
ation, and of the proceedings at their adoption, shall be laid
before the convention, and, if approved by that body, dele
gates from that congregation or parish may take seats, and
the congregation shall be considered as united to the con
vention. The provisions in Louisiana and Massachusetts are
similar.
By Canon 4 of Western New- York, " To entitle a church
to admission into union with the Protestant Episcopal Church
in this diocese, it is required that there be submitted to the
convention of the samer at a stated meeting :
" 1. A certificate from the Bishop, or in case of his ab
sence, or of a vacancy in the Episcopate, of a major part of
the Standing Committee, that he or they did, on notice thereof
previously given, approve of the incorporation of such church.
"2. The certificate of incorporation, duly proven and re
corded, or a copy thereof, certified by the clerk of the county."
The 4th canon of the diocese of New-York is as follows :
" § 1. To entitle a church to admission into union with
the Church in this diocese, it shall be required that the vestry
submit to the convention, or to a committee appointed by its
authority, the certificate of incorporation, duly recorded, or a
copy thereof, certified by the clerk of the county.
"•§ 2. Every incorporated church, applying for admission
into union with the convention of this diocese, shall also pro
duce to the convention a certificate of the Bishop, or in case
of his absence, or of a vacancy in the Episcopate, of the major
part of the Standing Committee, that he or they approve of
the incorporation of such church."
UNION WITH A CONVENTION. 275
Prior to the year 1825 there was no such provision in New-
York. The course was pursued of a direct application to the
convention for admission. Thus in 1796, several churches
were admitted upon petition of the churchwardens and vestry
men.
In 1793, a memorial was presented by the trustees of a
society composed of former members of Trinity Church, but
since separated, stating that they had erected a house of
public worship, and praying to be admitted into union.1
The vestry of Trinity Church had remonstrated against
this admission. In 1794 the application was renewed and
again rejected. In 1801, upon the renewed memorial of the
corporation of Christ Church, it was resolved that the conven
tion could not with propriety act upon it, while the Church
was destitute of a Bishop. And in 1802, it was further re
solved, that when the Bishop shall express to this convention
that he is satisfied with the acknowledgments made to him by
the rector and congregation of Christ Church, that they be re
ceived into communion with the Church. At a subsequent
day, the Bishop declared his satisfaction, and the rector and
delegates were admitted.
^In 1825, a canon was passed as follows : " "Whereas the due,
regular, and discreet admission of churches into union with
this convention is of importance to the peace and welfare of
the Church in general, it is hereby ordained, that from and
after the final adjournment of the present convention, it shall
be and it is hereby made requisite for every body corporate
applying for admission into such union, to produce to the con
vention a certificate of the Bishop, or in his absence, or if the
Episcopacy is vacant, of the Standing Committee, that he or
they have approved of the said incorporation."
Since 1825, the course of proceeding has been for the con
vention to appoint a committee on the incorporation of
1 Journal of Convention, 1793, p. 68. — ONDKRDONK'S ED.
276 UNION WITH A CONVENTION.
churches, which examines the certificate of the record ami
the approval of the Bishop. In general, if they are found
correct, the report for admission is made. The circumstances
of any special case would be specially reported upon.
It was before noticed that in Maryland it had been formally
determined that the act of incorporating under their statute
gave no right of itself to an admission into union.1 A similar
decision was made by the Standing Committee of New-York,
in the year 1850, in the case of Christ Church, New Brighton,
I add the judicious remarks of the committee on canons, of
the diocese of Wisconsin upon this subject. " The organiza
tion of a parish is strictly and solely an ecclesiastical pro
cedure, constituting the parish a component part of the Pro
testant Episcopal Church, and as such only entitling it to
ecclesiastical rights and privileges ; that is, to the rights and
privileges granted by the General and Diocesan Constitution
and Canons. The ecclesiastical organization gives no civil or
corporate powers to the parish. And further organization
simply, though it admits a parish into union with the Church,
does not admit it into union with the convention.
The constitution of Wisconsin directs that the organiza
tion as a parish should have lasted twelve months, then that
the church be incorporated, and then it may, by a majority of
votes, be admitted into union."
Thus the important distinction between an ecclesiastical
organization and a civil incorporation is clearly observed ; and
as on the one side it is plain that the ecclesiastical organiza
tion confers no corporate powers, so on the other it is manifest
that the civil incorporation cannot control any canonical or
diocesan relation. In truth, to hold that it can do so, is to
revive the supremacy of the state over the Church.
The extent of the authority of the Bishop in approving or
disapproving an act of incorporation, under the provisions in
lAnte page ? 241.
UNION WITH ANOTHER DIOCESE. 277
New- York, "Western New-York and Pennsylvania, is adverted
to under the head of the canon relating to the officiating of
ministers in the cures of others. See post, Chapter 5.
TITLE VII.
UNION OF A CONGREGATION WITH ONE IN ANOTHER DIOCESE.
By the 43d canon of 1832 it is provided as follows : —
" Whereas a question may arise whether a congregation with
in the diocese of any Bishop, or within any diocese in which
there is not yet any Bishop settled, may unite themselves
with the Church in any other diocese, it is hereby determined
and declared, that all such unions shall be declared irregular
and void ; and that every congregation of this Church shall
be considered as belonging to the body of the Church of the
diocese within the limits of which they dwell, or within
which there is seated a church to which they belong. And no
clergyman, having a parish or cure in more than one diocese,
shall have a seat in the convention of any other diocese than
that in which he resides.
The first canon on this subject was the 8th of 1795. The
only difference between that and the present canon was in
the use of the word " state " as well as "diocese" in certain
parts.
^The 37th of 1808 was in precisely the same words as that
of 1795.
The first canon of 1817 was temporary in its character.
It permitted the Episcopal congregations in Virginia and
Pennsylvania, westward of the Alleghany mountains, to place
themselves under the provisionary superintendence of any
Bishop who might be consecrated for any state or states west
ward of such mountains.
278 UNION WITH ANOTHER DIOCESE.
In 1820 this canon was repealed.
The principle and rule of the Church, by which a Bishop
was restricted to his own diocese and had almost exclusive
authority therein, was adopted with a view both to his effi
ciency and responsibility. It naturally follows from this prin
ciple, that the duty of all congregations within his limits is
co-relative. The destruction of all unity would ensue, if par
ticular congregations in a diocese could select any neighbor
ing Bishop to minister to them, whose services they most favor
ed. The canon has gone further, and wisely provided against
such an union, even where there is no Bishop. The present
convenience might be considerable, but the future evils would
be as great as in the other instance.
Dr. Hawks states that the origin of the Canon of 1795
was the union which took place of a church in Narragansett,
Rhode Island, with the diocese of Massachusetts. A con
vention of clergy and delegates, of various churches in Rhode
Island, had declared that Bishop Seabury should be the Bishop
of the Church in that state. The Standing Committee of
Massachusetts applied to Bishop Provoost, of New- York,
who ordained a clergyman for the Narragansett church. A
committee of the convention of Rhode Island reported that
"this proceeding of the authority in Massachusetts was incon
sistent with every principle of Episcopal government, and had
an evident tendency to induce disorder and promote schism."
(Constitution and Canons, p. 130.)
CHAPTER IV.
TITLE I.
ELECTION AND INSTITUTION OF MINISTERS.
[CANON XXX., General Convention, 1832.] '
§ 1. It is hereby required, that, on the election of a minis
ter into any church or parish, the vestry shall deliver or cause
to be delivered to the Bishop, or, where there is no Bishop, to
the Standing Committee of the diocese, notice of the same, in
the following form or to the following effect :
" We, the churchwardens, [or, in case of an assistant mi
nister, We, the rector and churchwardens,] do certify to the
Right Rev. [naming the Bishop] that [naming the person] has
been duly chosen rector [or assistant minister, as the case
may be,] of [naming the church or churches]." Which certi
ficate shall be signed with the names of those who certify.
§ 2. And if the Bishop or the Standing Committee be
satisfied that the person so chosen is a qualified minister of
this Church, the Bishop, or the President of the Standing
Committee shall transmit the said certificate to the secretary
of the convention, who shall record it in a book to be kept by
him for that purpose.
§ 3. But if the Bishop or the Standing Committee be not
satisfied as above, he or they shall, at the instance of the
parties, proceed to inquire into the sufficiency of the person
so chosen, according to such rules as may be made in the
280 ELECTION AND INSTITUTION
respective dioceses, and shall confirm or reject the appoint
ment, as the issue of that inquiry may be.
§ 4. And if the minister be a Presbyter, the Bishop
or president of the Standing Committee, may, at the in
stance of the vestry, proceed to have him instituted ac
cording to the office established by this Church, if that office
be used in the diocese. But if he be a deacon, the act of
institution shall not take place until after he shall have re
ceived priest's orders. This provision concerning the use of
the office of institution is not to be considered as applying to
any congregation destitute of a house of worship."
The former canons on this subject were the 17th of 1789,
the first of 1804, the 29th of 1808, and the second of 1814.
It will only be important to point out the material variations.
That of 1789 was the same as the three first sections of the
present canon, the phrase induotionbeingusod for election in the
first section. In that of 1804, a clause was added — " that if the
minister elect be a presbyter, the Bishop or president of the
Standing Committee shall proceed to have him inducted accord
ing to the office established by the Church. But if he be a deacon,
the act of induction shall not take place till after he shall
have received priest's orders, when it shall be the duty of the
Bishop or president to have it performed." And there was
also the following clause : " No minister who may hereafter
be elected into any parish or Church shall be considered as a
regularly admitted and settled parochial minister in any dio
cese or state, or shall as such have any vote in the choice of a
Bishop, until he shall have been inducted according to the
office prescribed by this Church."
In 1808, the canon of 1804 was re-enacted with the fol
lowing changes : The word " induction" was altered to " in
stitution," and it was newly provided : " This canon shall not
be obligatory on the Church in those dioceses or states, with
whose usages, laws, or charters it interferes. Nor shall any
OF MINISTERS. 281
thing in this canon, or in any other canon, or in any service
of the Church relative to the office of associated rector, apply
to the Church in those states or dioceses where this office is
not recognized by the constitution, laws, or canons thereof."
" But it is to be understood that this Church designs not to
express any approbation of any laws or usages which make
the station of a minister dependent on any thing else than his
soundness in the faith, or worthy conduct. On the contrary
the Church trusts that every regulation in contrariety to this,
will in due time be reconsidered; and that there will be re
moved all hindrances to such reasonable discipline as appears
to have belonged to the Churches of the most acknowledged
orthodoxy and respectability."
In 1814, this 29th Canon of 1808, was repealed so far as
it required the institution of an assistant minister, in order to
make him a settled minister, and entitled to vote for a Bishop,
and so far as it excluded a deacon from a seat and vote in any
convention when he is not excluded by the constitution and
canons of the Church in the diocese. And the provision as to
the use of the office of institution was not to apply to any
congregation destitute of a house of worship.
The certificate or notice is the substitute of the
§ i.
presentation of the English law : " The word presenta- THE CERTIFI-
tion is a known term of the law, and when spoken of a CATE OR NO-
benefice with cure imports the patron's presenting his TICE OF ELEC"
clerk to the ordinary to be admitted and instituted."1
It is a right of a purely temporal nature, and if the patron die
during the vacancy, the right devolves upon his personal re
presentative.
The consequences of neglecting to transmit this certificate
are pointed out in canons of several diocesan conventions.
For example, in New- York, by the canon as amended and pass-
1 Short vs. Carr. 2 Bro. P. Ca : 173. 2 Reynolds vs. the B. hoj of
Lincoln, 8 BINGHAM'S Rep. 550.
282 ELECTION AND INSTITUTION
ed in 1848, it is provided that the secretary shall record in a
book as therein specified all certificates transmitted to him in
accordance with the second section of canon 30 of the General
Convention of 1832. In case of a contested right to a seat
in the convention, the evidence of settlement shall consist in
such record, or in the production of the certificate. So by
canon first of the diocese of Maryland, (1847,) the clergyman,
to entitle himself to a seat in convention, must transmit to
the Bishop a certificate of the wardens and vestry of his
election. And by the second canon of the diocese of Western
New- York, evidence of a settlement in the Church shall con
sist in proof of a compliance with the 1st, 2d and 3d sections
of the 30th canon of 1832.
„ 2 It will be noticed that the Bishop, if not satis-
THE INQUIRY fied of the sufficiency of the person, may, at the
*NTO THE SUF- instance of the parties proceed to inquire whether
the chosen person is a qualified minister of the
Church. That this does not mean that he is merely
to ascertain whether the party has been ordained, appears plain
from the subsequent section, as well as from other considera
tions. Under that section, the term qualified must receive a
more comprehensive meaning. Its provisions are superfluous
if nothing is to be passed upon but the fact of ordination.1
The Bishop or Standing Committee is then to be satisfied
of the general fitness of the party elected ; and it may be
suggested that the test should be the continuance and present
possession of those qualities which originally entitled him to
ordination. Thus a double-guard would be afforded, first
against the intrusion of an unfit person into the Church at all;
and next an intrusion into a parish brought into connection
with the Church organization.
" The general rule," says Bishop Stillingfleet, "is, and it
1 See an Article in the True Catholic, vol. 5, p. 248. Also DR. HAWKS'
Constitution and Canons, p. 269.
OF MINISTERS, 283
was so resolved by the judges, that all such as are sufficient
causes of deprivation of an incumbent are sufficient causes
to refuse a presentee. But by the canon law more are allowed
— Multa impediunt promonendum quce non dejiciunt" In
the constitutions of Othobon, the Bishop is required to inquire
particularly into the life and conversation of him that is
presented.1
If, therefore, upon the information already possessed, or
acquired by an informal 'inquiry, the Bishop is not satisfied,
the parties may require an inquiry, and the appointment is
to be confirmed or neglected according to the result. If the
minister is found unqualified, the church cannot be admitted
into union with him as its rector, nor can he be treated as
canonically settled.
The power which thus resides in the Bishop, and which
this canon recognizes, is amply supported and illustrated by
English authority. Indeed, there is no point more clearly
settled, and as to which the interference of the civil tribunals
is more restricted.2
But if the power is thus clearly established, the next
question is, what is its extent, and what remedy is there for
its abuse ?
1 STILLINGFLEET'S Eccl. cases cited 1 BURN'S Eccl. Law, p. 157.
Ed. 1842.
0 As long ago as the time of Edward the Second, (articuli cleri,) it
was answered by the king- — ': Of the ability of a parson presented unto
a benefice of the Church, the examination belongeth to a spiritual
judge. So it hath been used heretofore, and shall be hereafter."
Lord Coke thus comments upon this passage : " De Idoneitate per
sona. This idoneitas consisteth in divers exceptions against parsons
presented. 1st, Concerning the person, as if he be under age or a
layman; 2d, concerning his conversation, as if he be criminous; 3d,
concerning his inability to discharge his pastoral duty, as if unlearned,
and not able to feed his flock with spiritual food. And the examination
of the ability and sufficiency of the person belongelh to the Bishop, who
ia the ecclessiatical judge; and in this examination he is a judge, and
284 ELECTION AND INSTITUTION
In England, it is laid down by the highest authorities that
the Ordinary is not accountable to any temporal court for the
measures he takes, or the rules by which he proceeds in ex
amining and judging ; only he must examine in convenient
time, and refuse in convenient time. Again, it is held that
the clerks having been ordained, does not take away or di
minish the right which the statute (articuli cleri) doth give to
the Bishop to examine and judge.1
The remedy in the rare cases in which the temporal courts
can interfere is by the writ of mandamus. There was also a
mode of redress in the ecclesiastical tribunals, by a writ
of Duplex Qucersela. This was a monition to the Bishop,
and at the instance of the clerk, that within a certain time
he admit the party complaining, and also a citation to show
cause why, by reason of his neglect, the right has not devolved
upon the superior judge.8
not a minister. This act is a declaration of the common law and cus
tom of the realm." (2 Inst., 631.)
u The inquiry," says Lynwood, "is, whether the party be com-
mendandus scientia et moribus." (GIBSON'S Codex, 806.)
By canon 39 of the canons of 1603, "no Bishop shall institute any to
a benefice who has been ordained by any other Bishop, except he first
show unto him his letters of orders, and bring him a sufficient testi
mony of his former good life and behavior, if the Bishop require it j
and lastly, shall appear upon due examination to be worthy of the
ministry."
1 GIBSON'S Codex, 807. SHOWER'S Parl. Cases, 88. Hele vs. the
Bishop of Exeter, 4 Modern., 134. In the leading case of the King vs.
the Archbishop of Canterbury and others, (15 EAST, 117,) the following
points were determined: That the writ of mandamus will lie at the in
stance of the patron, so as to compel the Bishop to return the reasons of
his refusal to admit a person presented ; that in his return he should
specially state the grounds of his refusal — that as it is his duty to ex
amine, an examination in some proper mode should be instituted, and
would be compelled; but that with these qualifications, his right to
proceed and his decision could not be inquired into.
2 1 BURNS' Eccl. Law, Ed. Phillimore, p. 159.
OF MINISTERS. 285
As our canon enjoins that if the Bishop is satisfied, he is
to send the certificate to the secretary of the convention, this
act of transmission is equivalent to an admission. If, there
fore, he neglect to transmit this certificate without good cause,
it would be a violation of this part of the canon, and pre
sentable under the third canon of 1844 ; and whether he had
good cause would then be investigated. So if he refused to
direct an inquiry when asked for by a party, the like relief
could be had. This at any rate would be one method in
which the decision might be investigated.
The canon directs that the Bishop or Standing § 4-
THE METHOD
Committee is to inquire according to such rules as
. OF INQUIRY.
may be made m the respective dioceses.
I do not find that any regulation has been made for the
conduct of such an inquiry in any of the dioceses, whose canons
I have had the opportunity of examining.
It is however submitted, that until such rules are pre
scribed, the power of the Bishop virtute officii, is amply suf
ficient. The whole body of the canonical law is to this effect,
and the civil courts in England have recognized the authority.
They have recognized it as older than the declarative statute
passed in the time of Edward the II. In fact when the canon
confers the power, and enjoins the duty of judging, it would
of itself (if that argument was necessary) involve the au
thority to direct a mode of investigation.
In the case before cited from 15 East Rep. 117, the
right of the Bishop in a somewhat similar case was much
discussed. The 19th section of the act of uniformity was in
question, that no one should be permitted to lecture or preach
unless he be approved of and licensed by the Bishop. Lord
Ellenborough said that the Bishop was to adopt the requisite
means of informing his conscience in order to the correct
exercise of this duty. He adverts to the statute articuli
cleri, and notices that the phrase there used is " examination,"
19
286 ELECTION AND INSTITUTION
which taken strictly may be understood to mean a personal
examination. But no contemporary or subsequent practice
had put this interpretation upon the act in question in the cause.
" The word of the statute is 'approve,' and the Bishop
must exercise that approbation according to his conscience,
upon such means of information as he can obtain ; and every
thing that can properly minister to his conscientious approba
tion or disapprobation, and fairly and reasonably induce his
conclusion, though it might not be evidence in a court of law,
may be fitly taken into his consideration."
If the inquiry is as to qualifications in learning and theo
logy, the course upon admitting a candidate to orders would
seem a proper one. If it refer to moral disqualifications, an
investigation by a commission of inquiry, or other reasonable
mode, is within the power of the Bishop.
The history of the canonical regulations of the
Church upon this subject is before given. (Ante
INSTITUTION
Dr. Hawks has made this branch of the canon
the subject of a long and able note. He has entered
fully into the nature of these offices in England. I will
add some authorities in order to explain my views. Burns
says, that the whole matter of admission, institution and in
duction, is well explained in the following passage of Sir
Simon Degge's Parson's Counsellor. " If the Ordinary, &c.,
upon the examination of the clerk, find him fit in all points,
then he admits him in these words : Admitto te habilem, fyc.)
and thereupon the Ordinary institutes him in these words :
Instituo te rector em ecclesice parochalis de C., et habere
curam animarum^ et accipe curam tuam et meam. When
the Bishop hath instituted the clerk, the ordinary maketh
a mandate under seal to the arch-deacon of the place,
or to such other clergyman as he pleases, to induct the clerk ;
and it may be made by the dean and chapter, but not by the
OF MINISTERS. 287
patron : for though by the institution the Church is full against
all persons except the King, yet he is not complete parson till
induction ; for by the institution he is admitted ad officium,
to pray and preach, yet he is not entitled ad beneficium until
he be formally inducted ; which may be done by delivery of
the ring of the church door, or latch of the church gate, or by
delivery of a clod or turf and twig of the glebe ; but the most
common and usual mode is, and therefore the safest, by delivery
of the bell rope to the newly instituted clerk, and the tolling
of the bell."1
In order fully to understand the subject, we must look
into another part of the English law, viz. that relating to do
nations. Justice Blackstone (Commentaries, vol. 2, p. 23.)
says — " An advowson donative is when the King, or any sub
ject by his license, doth found a church or chapel, and ordains
that it shall be merely in the gift or disposal of the patron,
and vested absolutely in the clerk without presentation, insti
tution, or induction. This is said to have been anciently the
only way of conferring ecclesiastical benefices in England, the
method of institution by the Bishop not being established more
early than the time of Archbishop Becket in the reign of William
II. Others contend that the claim of the Bishop to institute is
as old as the first planting of Christianity in this island, and in
proof of it they allege a letter from the English nobility to
the Pope in the reign of Henry III., recorded by Mathew
Paris, which speaks of presenting to the Bishop as a thing
immemorial. The truth seems to be that if a benefice was to
be conferred on a mere layman, he was first presented to the
Bishop to receive ordination, who was at liberty to examine
and refuse him ; but when the clerk was already in orders,
the living was usually vested in him by the sole donation of
the patron till about the middle of the 12th century, when
the Pope and his Bishops endeavored to introduce a kind of
1 Eccl. Law, vol.. 1, p. 167.
288 ELECTION" AND INSTITUTION
feudal power over ecclesiastical benefices, and in consequence
of that began to claim and exercise the right of institution
universally as a species of spiritual investiture." '
"Watson says : — " Donative was the ancient way of confer
ring benefices, and the institution to churches was not ordained
by any temporal law, there being only a papal provision, and
was not received in some places here in England ; and where
it was not received, they still went on in their old wray and
method of conferring benefices, which afterwards were called
Donatives."'2
But to this view of the matter may be opposed the high,
perhaps as high authority as is known in the English canon
]aw — that of Bishop Stillingfleet. He says:8 — "The name of
Patron in the sense of the feudal law is the same with Lord
of the Fee, and so beneficium is a feudal term ; and, till the
feudal law prevailed, the name of Patron is rarely used in
this sense. And when it came to be used, the Patrons in
France would have brought those who had their benefices to
a kind of feudal service, and to have received investiture from
them. This Mr. Selden drives at, as though the Patrons had
the right of investiture belonging to them, because some such
practice is often complained of in the French canons, and as
often condemned, not merely by ecclesiastical canons, but by
as good laws as any were then made. It cannot be denied
1 So FITZHERBERT Natura a Brev. foL 35. A donation is a benefice
merely given and granted by the patron to a man, without either pre
sentation to the ordinary, or institution by the ordinary, or induction by
his commandment.
2 Clergyman's Law, cap. 15, p. 170, cited in The Queen vs. Tolcy, Rep.
Common Bench, 1846, vol. 1, p. 664. In this case the learning on the
subject is extensively gone into, although the decision itself is of
little general importance. The case depended on the construction of
a particular deed.
See the form of a donative in CUNNINGHAM'S Law Dictionary, vol. 1,
tit. Donative.
3 Of the Duties, $c., of the Parochial Clergy, 162.
OF MINISTERS, 289
that bad practices are the occasion of making good laws ; but
doth it follow that those practices which were against law,
were the law of that time ? Yet this is Mr. Selden's way of
arguing. He grants that there were laws made, but they
were little obeyed. Mast we, therefore, conclude these illegal
practices to have been the standing law, and the laws them
selves to be illegal? There were two things aimed at by
these Patrons. 1st. To keep the clergy in a sole dependence
on themselves, without regard to the Bishop's authority. 2d.
To make such bargains with them as they thought fit. Both
these were thought necessary to be redressed by laws, since
the canons were slighted by them."
He proceeds to cite numerous laws and canons. Among
them, the 123d and 57th Novell of Justinian, in the fifth cen
tury, which contain the very law of our Church, in substance,
at this day. It was decreed, that if any man should erect an
oratory, and desire to present a clerk thereunto by himself or
his heirs, if they furnish a competence for his livelihood, and
nominate to the Bishop such as are worthy, they may be or
dained. And the Bishop was to examine them and judge of
their qualifications, and when these were sufficient, he was
obliged to admit the clerk.
Again, the Bishop, in his Treatise concerning1 Bonds of
Resignation, has entered into a refutation of Mr. Selden's
views of the matter, and, it appears to me, with great suc
cess. See particularly page 335. It is also certain that, in
the opinions of modern English jurists, these donatives, where
they now exist, are treated as having arisen from the Bishop's
consent, or the grant of the Grown ; and, as they are hostile
to all just notions of Episcopal power, they are narrowly re
stricted ; so much so, that if the holder of a donative do once
present to the Ordinary and suffer institution, its character of
a donative is lost, and it becomes presentative,1
1 See the case of The Queen vs. Toley, before cited, ahd Bishop Gibson's
note at page 865. (2 Croke 63, Styles' Rep. 172.)
290 ELECTION AND INSTITUTION
In our colonial history, the general system which prevailed
was a right of presentation by the vestry or the parish, and
of induction by the governor.
Thus, in Yirginia, by the statute of 1642, the induction
of a clergyman, into any parish which should make presenta
tion of him, was to be performed by the governor ; but it was
at the option of the parish to make or withhold the presenta
tion.1 Dr. Hawks states that this right was, he believes, conti
nued to be exercised up to the period of the Revolution. The
form of induction was : — " A. B., His Majesty's Lieutenant
and Governor- General, &c., To the Yestry of Parish, in
: In virtue of the presentation which you have made
to me of to be your minister, I do induct him into the
real and corporal possession of the parish of in ,
with all the rights, profits, and appurtenances thereof."
In 1793 a canon was adopted, and re-enacted in 1799,
entitled " Of the Induction of Ministers into Parishes," which
prescribed that the right of presentation, or appointing minis
ters, should continue in the vestries, and no person should be
received into any parish within the commonwealth, as a
minister, until he should have entered into a contract in
writing with the vestry or trustees, on behalf of the society
within such parish, by which it shall be stipulated and de
clared, that he holds the appointment subject to removal
agreeably to the rules and canons of the convention of the
Protestant Episcopal Church of the state. (HAWKS, vol. 1,
App., 63, 76.)
In Maryland, under the proprietary government, a different
course was taken. The lord proprietor appointed a clergy
man to a living, the Bishop of London gave him a license,
and the governor inducted him. In consequence of this, Lord
Baltimore insisted that all the livings in Maryland were
donatives.2
1 HAWKS' Con., vol. 1, p. 53, 88.
8 HAWKS' Contr., vol. 2, p. 190. Ibid., 2395 357.
OF MINISTERS. 291
In New- York, by the 6th section of the act of 1693, the
ministers were to be called to officiate in their respective pre
cincts by the respective vestrymen and churchwardens. They
were presented to, and inducted by the governor.1 In Dr.
Berrian's History of Trinity Church the forms are stated in
full of the presentation of Rev. Mr. Barclay to the governor,
the Act of Admission, the Letter of Institution, and the Man
date of Induction. These precedents completely display the
law in New-York, and probably in most of the other Episco
pal colonies. The presentation requests the governor to ad
mit, institute, and induct the clerk, and the acts of admission,
institution and induction, are all separate instruments.
Dr. Hawks, in his able note upon the canon, has been led
to the conclusion that the change in the title of the Church
office from hiduction to institution, was not designed to change
its object and operation; that it still remains the method
through which the right to the temporalities, and especially
the control of the church edifice, is to be obtained ; and he
presses the importance of the office being observed with a
view to this point.
I cannot think, however, that in the diocese of New- York,
(and the reasoning will apply to other dioceses,) this conclusion
is entirely accurate. I apprehend that the call itself, (which
should always be in writing,) with the occupation of the
church and performance of the duties in it, would entitle the
clergyman to every right and authority which he would pos
sess by usage, or civil or canonical law, had the office of in
duction been used, or the word induct employed in the written
call. "What is the extent of the right of possession and other
rights has been before partially noticed. ( Ante p. 265.)
In a case in 1845, the Standing Committee of New- York
adopted the following report and resolution: "Application
having been made, &c., and it appearing that under the
1 See DR. BERRIAN'S History of Trinity Church, 42.
292 ELECTION AND INSTITUTION
29th canon of the General Convention of 1808, and a resolu
tion of the convention of the diocese of New-York, passed
October, 1820, letters of institution are not necessary in this
diocese for the enjoyment of any privilege or the exercise of
any right, by either a parish or its rector, and that the insti
tution office of the Church is not generally used herein ; and
taking into consideration the peculiar situation of this com
mittee, therefore, resolved, that this committee decline issuing
such letters in the present case."
It was considered by the committee that the phrase in
the canon, " if the same is used in the diocese," meant a gen
eral usage. The practice is by no means uncommon in the
city of New-York, although not universal. It is rarely used
in other parts of the diocese. After the convention of 1845,
letters of institution were issued in this and other cases.
It is to be noticed, that the term employed in the canon is
may proceed. Yet if the vestry apply for it, the word would
probably be considered to mean shall. Again, the application
of the vestry is a pre-requisite.
In a previous part of this work, (Chapterl., pp. 120-126,) I
have entered at length into the subject of this canon with a view
to the question of the powers of the G-eneral Convention, and
have before made some suggestions as to the effect of the insti
tution office upon the contracts between parishes and min
isters. I beg to refer to this, and to state here the results
which I submit are deducible upon the whole matter.
1st. It is within the power of the General Convention to
establish any rules respecting the qualifications of members of
that body : of course to say, that no clergyman not instituted
according to the office shall be a member.
2d. It is also within its power to declare that no clergy
man shall (after the passage of the canon) be a member of
any diocesan convention, unless he has been instituted into
some church according to the office.
OF MINISTERS. 293
3d. That the institution office is not essential to give to a
minister any right to the emoluments attending the cure ; but
such (in the absence of express stipulation) are as recoverable
in the civil tribunals without as with- it.
4th. Neither is it necessary, in order to vest the incum
bent with that use of, and power over, the church building
and precincts which is attendant upon his office, and requi
site for its proper performance ; that what such power is, may
be ascertained from the law of the Church, judicial decisions,
and the reason of the thing — that the delivery of the keys
has no more legal effect upon this question than the call and
an occupation pursuant to it.
5th. That nothing in the office itself, to which the war
dens and vestry are parties, has any operation upon any pre
vious contract between the parties. The symbolical delivery
of possession would be regulated as to extent, term, and
nature of possession by the private contract, where one was
made.
6th. And as to that clause in the letter of institution
which relates to the ultimate power of the ecclesiastical au
thority to judge of the propriety of a dissolution, even if omit
ted, it leaves the 33d canon of 1832 in full force, and imposes
upon any particular church the task of showing a law, usage,
or charter, interfering with that canon.
While I should greatly regret, with a view to the pro
tection of the clergy, that the positions thus presented should
prove erroneous, there can be no doubt of the propriety and
advisability of using the office throughout the Church.
294 OF PAROCHIAL INSTRUCTION.
TITLE II.
OF PAROCHIAL INSTRUCTION.
[CANON XXVIII. of 1832.]
" The ministers of the Church who have charge of parishes
or cures, shall not only be diligent in instructing the children
in the catechism, but shall also, by stated catechetical lec
tures and instruction, be diligent in informing the youth and
others in the doctrines, constitution, and liturgy of the
Church."
The 22d canon of 1808 was the first upon this subject,
and was in precisely the same words.
By the rubric to the office of catechism, the minister of
every parish shall diligently upon Sundays and holy days, or
on some other canonical occasions, openly in the church in
struct or examine so many of the children of his parish sent
unto him as he shall think convenient, in some part of that
catechism.
By the English rubric, "the curate of every parish shall
diligently, upon Sundays and holy days, after the second les
son at evening prayer, openly catechise the children."
Archdeacon Sharp says that some of the strictest men
in rubrical matters have justly observed, that no obligation
can be urged from hence that ministers should catechise on
all Sundays and holy days ; but if they do it as often as oc
casions of their parishes require, and do it on such days and
at such times as are specified, they fulfil the intention and
the letter of the rubric.1
Rubrics and Canons, p. 67.
KEEPING A PARISH REGISTER, <295
TITLE III.
OF THE KEEPING A PARISH REGISTER.
[CANON XXIX. Gen Conv. 1832.]
" $ 1. Every minister of the Church shall keep a register
of baptisms, confirmations, communicants, marriages, and
funerals, within his cure, agreeably to such rules as may be
provided by the convention of the diocese where his cure lies ;
and if none such be provided, then in such manner as in his
discretion he shall think best suited to the uses of such a
register.
And the intention of the register of baptisms is hereby
declared to be, as for other good uses, so especially [for the
proving of the right of church-membership of those who may
have been admitted into this Church by the holy ordinance of
Baptism.
§ 2. And further, every minister of this Church shall
make out and continue, as far as practicable, a list of all
families and adult persons within his cure, to remain for the
use of his successor, to be continued by him, and by every
future minister in the same parish."
The first canon on this subject was the fifteenth of 1789.
It differed from the existing canon in directing the register to
be kept agreeably to such rules as the ecclesiastical authority
should provide, instead of the convention of the diocese as at
present.
There was also the following clause in that canon which
is not in the present: "And no minister shall place on the
said list the names of any persons, except those who on due
inquiry he shall find to have been baptized in the Church, or
who, having been otherwise baptized, shall have been received
into this Church, either by the holy rite of Confirmation, or
by receiving the holy Communion, or by some other joint act
296 OF THE KEEPING
of the parties and of a minister of this Church, whereby such
persons shall have attached themselves to the same."
The canon was adopted in the same form in 1808, and so
remained until that of 1832, now in force.
Certain rules have been adopted in various dioceses under
this law.
In New- York, the 7th canon provides as follows : " Where
as, by the 29th canon of the General Convention of 1832,
it is made the duty of each clergyman of this Church to keep
a register of baptisms, confirmations, communicants, mar
riages and funerals within his cure, agreeably to such rules
as may be provided by the convention of the diocese where
his cure lies, it is hereby ordered that
" § 1. The record shall specify the name and time of the
birth of the child baptized, with the name of the parents and
sponsors ; the names of the adult baptized ; the names of the
parties married ; the names of the persons buried, and also
the time when each rite was performed. These registers
shall be kept by the minister in a book to be provided for
that purpose belonging to the vestry of each church, which
book shall be the parish register, and shall be preserved by the
vestry as a part of the records of the church.
" The list of communicants shall embrace all within his
cure, as nearly as can be ascertained, and he shall also keep
a list of the families and adult persons in his cure, as far as
practicable, and also an accurate list of persons confirmed
from time to time by the Bishop.
" § 2. And whereas, by the 8th canon of the General Con
vention of 1841, every minister of the Church shall present,
or cause to be delivered, on or before the first day of every
annual convention, to the Bishop of the diocese, or where
there is no Bishop, to the president of the convention, a state
ment of the number of baptisms, confirmations and funerals,
and of the number of communicants in his parish or church,
A PARISH REGISTER. 297
and of all other matters that may throw light on the same :
it is further ordered, that in reporting the number of commu
nicants, he shall distinguish the additions, removals and
deaths since his last report.
" In every case where a parish is destitute of a minister,
the register contemplated by this canon shall be kept by some
person appointed by the vestry for that purpose ; and the an
nual parochial reports shall be presented or forwarded to the
Bishop by the wardens of the parish."
The canonical regulations are nearly the same in Dela
ware, Ohio, and Western New- York.
Parish registers began to be kept in the 30th year of
Henry VIII., being established by Cromwell when Vicar
General. The duty was enforced by injunctions of Edward
Sixth and Queen Elizabeth, and also by the 70th canon of
1603. • Various statutes were made concerning them at dif
ferent times, but they were all condensed in a full act for a
national registration, that of the 6th and 7th William IV.,
c. 86.
Parish registers are, to a certain extent, admitted in evi
dence, and great care should be used in making the entries.1
By the statute of the state of New- York, (2 R. * 139,) it
is provided, § 7, that the minister or magistrate by whom a
marriage is solemnized, pursuant to the provisions of the
statute shall furnish, on request, to either party a certificate
thereof, specifying
1. The names and places of residence of the parties mar-
ried, and that they were known to such minister or magis
trate, or were satisfactorily proven, by the oath of a person
known to him, to be the persons described in such certificate,
1 Jackson vs King, 5 COWEN, 236. Sworn copies of entries of bap
tisms and marriages in the records of the Reformed Dutch Church in
the city of New-York were admitted to prove those facts. See 5 PE-
j TERS, 470; 6 BINNET, 416.
298 OF THE KEEPING
and that he had ascertained that they were of sufficient age
to contract matrimony.
2. The name and place of residence of the attesting wit
ness or witnesses : and
3. The time and place of such marriage.
The certificate shall also state, that after due inquiry
made, there appeared no lawful impediment to such marriage ;
and it shall be signed by the person making it.
Every such certificate signed by a magistrate, if present
ed to the clerk of the city or town where the marriage was
solemnized, or to the clerk of the city or town where either of
the parties reside, within six months after such marriage, shall
be filed by such clerk, and shall be entered in a book to be
provided by him, in the alphabetical order of the names of
both the parties, and in the order of time in which such cer
tificate shall be filed.
If the certificate is signed by a minister, it may be filed
and recorded in like manner, provided there be endorsed there
on, or annexed thereto, a certificate of any magistrate re
siding in the same county with such clerk, setting forth that
the minister by whom such certificate is signed is personally
known to such magistrate, and has acknowledged the execu
tion of the certificate in his presence ; or that the execution
of such certificate by a minister or priest of some religious
denomination was proved to such magistrate by the oath of a
person known to him, and who saw the certificate executed.
Certain provisions are then made in the statute as to the
form of the entry by the clerk, and it is then provided, that
every such original certificate, the original entry thereof made
as directed, and a copy of such certificate, or of such entry
duly certified, shall be received in all courts and places as
presumptive evidence of the fact of such marriage.
This statute, as reported by the revisers, required all mar
riages to be solemnized in the manner pointed out by the fore-
A PARISH REGISTER. 299
going provisions, with a view to prevent abuses, to furnish the
means of proving marriages, and to authenticate and preserve
such proof. The joint committee and the legislature concur
red in the utility of providing means for authenticating the
proof ; and in reference to cases where the parties required
their marriages registered and authenticated, they concurred
in the expediency of prescribing the solemnities to be observed ;
but they did not concur in the utility of providing that
all marriages should be solemnized in the manner prescribed.
Several sections were therefore stricken out, and others were
amended. A further clause was added, " that the provisions
of the article should not require the parties to any marriage,
or any minister or magistrate to solemnize the same in the
manner therein prescribed ; but all lawful marriages contract
ed in the manner before in use in the state, should be as valid
as if the article had not been passed."
TITLE IV.
DUTY OF MINISTERS ON EPISCOPAL VISITATIONS.
[CANON ATYL, General Convention 1832.]
$ 1. It shall be the duty of ministers to prepare young
persons and others for the holy ordinance of Confirmation.
And on notice being received from the Bishop of his intention
to visit any church, (which notice shall be at least one month
before the intended visitation,) the minister shall give imme
diate notice to his parishioners individually, as opportunity
may offer ; and also to the congregation on the first occasion
of public worship after the receipt of said notice. And he shall
be ready to present for confirmation such persons as he shall
think properly qualified, and shall deliver to the Bishop a list
of the names of those confirmed.
§ 2. And at every visitation, it shall be the duty of the
300 DUTY OF MINISTERS
minister, and of the churchwardens or vestry, to give infor
mation to the Bishop of the state of the congregation, under
such heads as shall have been committed to them in the no
tice given as aforesaid.
§ 3. And further, the ministers and churchwardens of such
congregations as cannot be conveniently visited in any year,
shall bring or send to the bishop, at the stated meeting of the
convention of the diocese, information of the state of the con
gregation, under such heads as shall have been committed to
them, at least one month before the meeting of the convention.
The first canon was the llth of 1789. The only other,
prior to 1832, was the 21st of 1808. The canon of 1789 dif
fered from the present in these particulars merely : Instead of
the words " young persons," the word "children" was used
in the first line of the first section.
The clause directing the minister to give notice to his
parishioners individually, and to the congregation on the first
occasion of public worship, was not comprised in it, nor the
word " vestry " after churchwardens in the second section.
In 1808, the only variation made was the insertion of the
word "vestry " in the second section.
It is necessary, in order to understand some questions
upon this subject, to advert to the 25th canon of 1832.
That canon regulates Episcopal visitations. It provides,
§ 1. That every Bishop in the Church shall visit the churches
within his diocese, for the purpose of examining the state of
his Church, inspecting the behavior of the clergy, and ad
ministering the apostolic rite of Confirmation. And it is
deemed proper that such visitations be made once in three
years at least, by every Bishop, to every church within his
diocese, which shall make provision for defraying the neces
sary expenses of the Bishop at such visitation. And it is
ON EPISCOPAL VISITATIONS. 301
hereby declared to be the duty of the minister and vestry of
every church or congregation to make such provision accord
ingly.
§ 2. But it is understood, that to enable the Bishop to
make the aforesaid visitation, it shall be the duty of the
clergy, in such reasonable rotation as may be devised, to offi
ciate for him in any parochial duties which belong to him.
§ 3. It shall be the duty of the Bishop to keep a register
of his proceedings at every visitation of his diocese.
It deserves notice, that in the first section of this canon
the phrase is, " of examining the state of his (the Bishop's)
Church." This was the phrase in the preceding canons, viz.,
the 3d of 1789, the 1st of 1795, and the 20th of 1808.
The principle of diocesan authority and supervision
which we find in the early Church, will lead us to an
understanding of the object of a visitation, and the power
of a Bishop when making it. When the diocese was small,
the duties were performed by himself, or with the aid of cer
tain of his clergy : afterwards, delegates of his clergy from,
the body assembled around him officiated in his stead in de
signated places. And lastly, as the necessities of the Church
required, and the bounty of patrons gave the opportunity,
some of the clergy were located in certain defined limits, with
the care of souls therein committed to them ; and the superior
power of the Bishop over his Church came to be exercised
occasional^ and by visitation.1
1 Bishop Stillingfleet says, in his Discourse at the Visitation of
Worcester Cathedral : " The right of a visitor is a legal right, and well
known, and implies diligence and care in inspecting, and authority to
reform abuses and to punish offenders, without which it would be an
insignificant title. "
" In the old churches, which were not altered by Henry VIII., the
Bishop acts by virtue of his original jurisdiction, and visits as Bishop of
20
302] DUTY OF MINISTERS
Accordingly, we read, these visitations were regulated by
canons at a very early period. A canon of the 3d Council of
Tarracona speaks of the duty of an annual visitation as one
established by old custom.1
The leading objects of the visitation, as stated by the ca
nonists, were not merely to see that the fabric and ornaments
the diocese, who is bound to look after the clergy not only in parochial
churches, but in communities, especially that of the cathedral, where the
Bishops' authority was first fixed, and from whence persons were sent
to preach in different parts of the diocese, before the endowment of
parochial churches, which was a work of time, and not so early as is
commonly thought. But by degrees, in these cathedral churches, the
Bishops thought fit to limit the exercise of their own jurisdiction to
certain times, but still reserving the right of appeal and the power of
visiting at such limited time in ordinary course ; and within that time
all that interior jurisdiction, which was in the Dean Chapter, and was
originally derived from the Bishop, was suspended, and returned again
when the visitation ended."
So in his Treatise on the Antiquities and Legality of an Archdeacon's
Visitation, he says : " After the Christian Church became so much en
larged that the dioceses of Bishops were looked on as. too great for
the particular care of one person, by a general consent of the Chris
tian Church some presbyters were particularly appointed to have an
inspection over the remoter parts of the diocese, but in subordination
to the Bishop." ,
In the Preface to the Duties and Rights of the Parochial Clergy, he
says : " The Bishops were resident in their own sees, and had their
clergy then about them, whom they sent abroad, as they saw cause, to
those places where they had the fairest hopes of success ; and accord
ing thereto, they either continued or removed them, having yet no
fixed cures or titles. All the first titles were no other than being en
tered on the Bishop's register as of his clergy, from which relation none
could discharge himself without the Bishop's consent."
See also the Discourse on the Bonds of Resignation, (Cases, 309.)
In the 9th chapter of KEMRLE'S Saxons in England, (vol. 2, p. 430.)
we find it stated i li In the theory of the ancient Church, the whole
district subject to the rule of the Bishop formed one integral mass ; the
parochial clergy, even in spirituals, "were but the Bishop's ministers or
vicars, and in temporals they were accountable to him for every gain
which accrued to the Church. "
1 YAM ESP JIN, Tome I., Tit. 17.
ON EPISCOPAL VISITATIONS. 303
of the churches were preserved and increased, but chiefly
that the ancient Christian discipline was restored, both among
clergy and people — to inquire into the conduct of both, and
to correct those who are depraved.1
Van Espen, in speaking of exemptions, cites two cases in
the Grallican Church, in which it had been held, that in one
instance, an Archbishop, and in another a Bishop, had been
in the habit of visiting a particular church of the holy order
of St. Anthony, " the baptismal fonts, and chapel, or parochial
church, with everything annexed to the same, and of perform
ing therein everything which related to the cure of souls, in
the same manner as in other beneficed cures of his diocese."2
By some regulations, the Bishop was not to act judicially
at these periods, or take cognizance of such notorious crimes
as were the subjects of judicial process. His office then, was
rather to correct in a summary mode, and without form or
publicity, whatever he found wrong.3 So in COMYN'S Digest,
Tit. Visitor, C., we read, that the Bishop is to proceed sum-
mar ie, simpliciter, et de piano, sine strepitu aut figurajudlcii.
And the ablest among the canonists hold that no exemp
tion, no custom, no incorporation, can possibly exempt any
places, regular or secular, from the visitation of Bishops, with
out the entire destruction of Episcopal authority and hier
archical subordination.4
Ayliffe observes, from the sixth book of the Decretals, that
among the orders to be observed by Archbishops, Bishops, and
1 VAN ESPEN, citing various authorities. Tome I., Tit. 17, cap. 1-11.
3 " Fontes baptismales, et capellam, sue parochial em, cum omnibus
suis anneris, atque in his exercemH. omnia quse curam animarum spec-
tant, sicut in aliis beneficiis curatis suae Diocesis. Item judicatur pro
episcopo Ambiamensi. Ibid., cap. 3, 9.
8 Ibid., cap. 4,4.
^4 Ibid., cap, 3, 9. See also the 8th canon of the Council of Chal-
cedon.
304 DUTY OF MINISTERS
others in their visitations, the first is, that they ought to
preach the word of God by giving the congregation a sermon.1
In the English Church, during a visitation, the power
and jurisdiction of all inferior persons is superseded and in
hibited. A custom arose, from the inconvenience of this rule,
of granting relaxations, often of an unlimited nature, and
sometimes, " of leave to confer orders, confirm, grant fiats
for institution, institute, or correct."7 In these latter instances
the visitation was of course by the Archbishop.
With respect to the visitations by Archdeacons, as to
which so much is found in the English books, I content my
self with referring to the Treatise of Bishop Stillingfleet, of
the Antiquity and Legality of Archdeacons' Visitations, and
to Gibson's Codex, Tit, Visitation. It will be sufficient to
observe, that the chorepiscopi, or rural Bishops, had inspection
over the remotest parts of the diocese, in subordination to the
Bishop. The Council of Laodicea (anno 300) forbade this
practice, and directed that no Bishop should be placed in
country villages, but only visiting presbyters. It seems, how
ever, that the title continued, and that great disputes arose as
to the extent of their power, they claiming, in some cases,
the right to confer orders. At the Council of Aken in 803,
orders conferred by them were declared null, and their office
was abolished. This was also done by a capitular of Charles
the Great, and canons were then made for the visitation by
the Bishops personally of their whole diocese once a year.
The Bishops, however, probably from the necessity of the
case, substituted certain of the clergy in place of the chor-
episcopij to discharge similar duties ; and as the archdeacon
was near the Bishop, and mainly trusted by him. a delegation
of authority came to be committed to him. " He was, at
first," says Bishop Gibson, " employed generally throughout
1 Poor., 515.
8 GIBSON, p. 958.
ON" EPISCOPAL VISITATIONS. 305
the diocese at the pleasure of the Bishop, and his power in the
ancient state was chiefly a power of inquiry and inspection"1
An important case was decided in the Queen's Bench in
1841, involving some points which it may be useful to notice
An abstract will be found in the note.2 It is principally val
uable in settling the right of a Bishop to make inquiries by a
delegation of power, a point which has been several times dis
cussed in relation to various canons.
A case of great interest occurred in Maryland in the year
1847, — the case of the Rev. Mr. Trapnell.
1 Codex, 100. &c.
2 The Dean of York's case, apud, 1 BURNS by Phillimore, 15, &c.
The Archbishop of York held a visitation of the Dean and chapter
of that cathedral church, and appointed Dr. Phillimore his commissary
to carry it into effect. The Dean being charged with simony in the
sale of livings, denied the jurisdiction of the commissary to try him.
He was proceeded against, however, and sentence of deprivation pro
nounced. A prohibition was applied for. The question turned mainly
on the statute 30th Victoria, and the effect of a proviso in that statute.
The statute had enacted " that no criminal suit or proceeding against a
clerk in holy orders, for any offence against the laws ecclesiastical,
shall be instituted in any ecclesiastical court, otherwise than according
to the provisions of that act."
The proviso was, " that nothing in the act contained chould be con
strued to affect any authority over the clergy of their respective pro
vinces or dioceses, which the Archbishop or Bishops may now. accord
ing to law, exercise personally, and without process in court."
The court first held, that as soon as the visitor proceeded to exam
ine the proof of an ecclesiastical offence charged, with a view to pun
ishment by deprivation or otherwise, a criminal proceeding was un
doubtedly instituted.
Next, that as by the statute, the proceeding to be within the act,
must be one in an ecclesiastical court, they were brought directly to
the question, whether a Bishop as visitor, had a power to deprive with
out process of court. This would solve the point whether the proviso
was applicable or not. Lord Denman then entered upon the authori
ties, and came to the conclusion, that no such power of deprivation
had ever been exercised without a judicial process. He concludes:
"Up to the point of the sentence, the Archbishop unquestionably had
power to inquire with a view to ulterior proceedings, and it seems that
the Lord Chancellor discharged an application for a prohibition that had
been made to him before sentence, on that very ground."
306 DUTY OF MINISTERS
The principal charge against him was for insubordination,
in refusing to permit the Bishop to administer the Holy Com
munion at his annual visitation ; and the charge was framed
under that part of the canon of Maryland enumerating among
canonical offences, " conduct incompatible with the character
of a minister of Christ."
One objection to the presentment was, that the offence
was not one of those enumerated in the 37th canon of the
General Convention, that no presentment could be made ex
cept under that canon, and the canon of Maryland was void
if it constituted a new triable offence.
This was overruled, and a part of the argument of the
Church advocate was precisely that heretofore advanced in
this work : That the canon did not contain the full penal code
of the Church — that its title was " Of Offences for which a
Clergyman' may be Tried," not of "the" offences. That
no exclusive legislation was designed. It was only meant to
specify some offences for which a clergyman must be tried,
leaving the code to be filled up as the separate conventions-
might think proper.
The other leading points of the powerful argument of the
Church advocate were —
1. That the Bishop is a minister of the word and sacra
ments ; in other words, a priest.
2. That he has jurisdiction throughout his diocese.
3. That visitation is an exercise of his jurisdiction.
Having established these positions in an argument of
marked ability and learning, he draws the conclusion that
the Bishops, being originally clearly endowed with the power
of preaching and ministering in every part of their dioceses,
had not parted with that right, although they bad circum
scribed its exercise to the periods of visitation. And he then
proceeds to a critical examination of those portions of the ru-
ON EPISCOPAL VISITATIONS. 307
brics and canons which were relied upon as settling the non-
existence of the right.
The determination of the court was, " that even in the
absence of canonical legislation on the subject, the Bishop, in
order to the discharge of his Episcopal functions, possesses
the right to administer the holy Communion on occasions of
canonical visitations." '/ ,
The question was again revived in Maryland in the year
1850, in the case of Christ Church, Baltimore, and the posi
tion of the court in the case of the Rev. Mr. Trapnell, above
stated, was supported by the convention. I annex in a note
the reports of the committee to which the matter was referred.1
1 li The committee to which was referred so much of the Bishop's
address as related to his recent notice of a visitation to Christ Church,
Baltimore, and the revocation of that notice, and also the correspond
ence between him and the rector of that church, and the letter of its
vestry to certain other Bishops, beg leave respectfully to report.
u That they have endeavored to consider these subjects with the care
and dispassionateness which their importance and their delicacy de
mand. The committee do not regard it as a matter submitted to their
consideration whether the terms of this correspondence are exceptiona
ble in respect to the language or tone in which it is expressed. The
object of it was obviously to make a question as to the relative right
of the diocesan and the rector on an occasion of a regular canonical
notice of an Episcopal visitation; and the question is distinctly raised,
and the harmony of the diocese will, it is believed, be best promoted,
by an authoritative judgment of the convention on the questions in
volved.
"Your committee is of opinion that the true solution of these ques
tions does not rest on any mere verbal criticism of canons and rubrics,
although entirely consistent with the results of such criticism, when
rightly employed. Their true solution rests on principles, much deep
er and more vital principles, which lie at the foundation of the Church
itself. In reasoning with Churchmen it is lawful, it is indeed only re
spectful to them, to take as axioms those truths which the Church
clearly maintains, however they may be doubted or denied by those
out of her pale. Among such truths are the following: 1st, that Bish
ops are successors to the Apostles in the ordinary powers of their of
fice, though not in the extraordinary qualifications and endowments of
those first ministers of Christ. 2ndly, that as such the apostolic
308 DUTY OF MINISTERS
A great point in the argument of the Rev. Mr. Trapnell
and his counsel, reiterated in the report of the minority in
commission' embraces them, and that they too are enjoined and au
thorized to go into the world and teach or disciple all nations, baptising
them in the name of the Father and of the Son and of the Holy
Ghost. 3dly, that consequently Bishops as such have the right to
preach and administer the Sacraments, as well as rule in the Church.
4thly, that these Episcopal rights are to be exercised in their dioceses,
these being their appointed fields of labor. 5thly, that consequently
every Bishop has a right to preach and administer the Sacraments in
his diocese, independently of any parochial cure ; and in every part of
his diocese, for if there be any part of his diocese in which he cannot
exercise episcopal rights, then in that part he is not Bishop.
"On these principles the committee found their clear conviction of the
general right of a Bishop to preach, to administer the Sacraments, and
to rule, in his whole diocese, and in every part of it. It would seem
a necessary conclusion that if there be a church in a diocese, in which
the Bishop can never preach or administer the Sacrament, and the
like, without being in such instance authorised by another, that he
really has not Episcopal power in that Church. It may be asked. Is
there no limitation to these principles? Can a Bishop at any time, in
any part of his diocese, perform any ministerial act he pleases? The
committee will not keep back their belief that in the beginning it was
even so — that in the earliest ages of the Church, presbyters did not
preach when Bishops were present, and that, as we are taught by the
learned Bingham, it was a notable event, when St. Augustine, while
still a presbyter, was permitted to preach in the presence of the Bishop.
The institution of the parochial system has, however, produced a
mighty revolution in the relations of Bishops and presbyters. Presby
ters are now made responsible for the spiritual state of the souls in
their parishes, and their power must bear some relation to their re
sponsibility. The committee consequently conceive that the mere
presence of a Bishop does not, by the present established system of the
Church, take away the right and duty of a presbyter to teach in his
own person, and administer the Sacraments by his own hands to the
people of his charge. And yet the Bishop, on the principles first laid
down, must also have the right to teach and administer the Sacraments
in every part of his diocese. These apparently conflicting rights are,
as the committee believe, perfectly reconciled in the admirable system
of the Church by confining the Bishop in the exercise of his, to those
comparatively rare occasions on which he goes officially, in his very
Episcopal character, in visitation of a parish. If he have it not then,
he never has it, and one of two conclusions must follow; either that
ON EPISCOPAL VISITATIONS. 309
the case of Christ Church, depended upon the principle,
that a Bishop was but a priest with some superadded poweis ;
the Bishop, as such, is not authorised to preach and administer the
Sacraments, or that being thus authorised by his very office, this au
thority is afterwards taken from him by the rubrics and canons which
regulate that office. Are we to believe that the Church has so stulti
fied herself? and that having in the consecration office given these
powers in obedience to Scripture, the moment the consecration is com
plete she takes them away by her rubrics and canons which the Bishop
is bound to observe ? Such a conclusion any one who loves or honors
the Church will be slow to receive. On what ground are we asked to
receive it ? Mainly on this, that in the ordinary Communion Office;
the minister is usually described as " priest," and that when the
Bishop is specially spoken of, it is in contradistinction from " the
priest" in giving the absolution. An obvious reply to this, is, that
every Bishop is necessarily a priest, and that the word here means
only an officer distinct from layman or deacon, and that the effect of
the rubric concerning absolution in the Communion Office, as compared
with the other rubrics of that office, is, that when the Bishop is present,
he must pronounce the Absolution, while he may or may not perform
the other parts of the office.
" But that the term c priest' in the rubrics of the Communion Office
is used inclusively and not exclusively of Bishops, appears to the com
mittee indisputably certain from this consideration, that in the Liturgy
of the Church of England, in the Ordination Service, the Bishop is re
quired to administer Communion, and that the only form provided in
that Church is the form containing the same rubrics with our ordinary
form. Consequently those rubrics in the English Liturgy must be so
interpreted that the term " priest " includes Bishops as well as presby
ters. Bat as we have adopted the rubrics with a fixed interpretation,
we have necessarily adopted the interpretation. If it be 'said in reply
to this that our Church has a special Communion Service to be used by
the Bishop on occasion of ordination, this must be remembered in con
nection with that service, that there is no rubric in it, and certainly
there is no canon, confining it to any special occasion \ but that it is
just the office which a Bishop might naturally and properly use when
ever he administered the Communion, and that in this none of the
rubrics which have perplexed some minds are to be found.
While on these grounds the committee are of opinion that on occasions
of visitation a Bishop generally in our Church has, and ought to have, the
right to preach and administer the Sacraments, and perform other min
isterial acts in any parish of his diocese, they consider that the ques
tion as to the law of this particular diocese was settled some three years
310 DUTY OF MINISTERS
that such additional powers were conferred by the acts of the
Church in councils or synods ; that we are to ascertain what
ago, by the decision of the only ecclesiastical tribunal before which it
would judicially come. Of course this decision might be set aside by
a declaratory canon, and perhaps otherwise ; but until superseded the
committee consider it as having a binding force on all who belong to
this diocese. They consequently regard the Bishop as fully authorised
to issue his notice of visitation to Christ Church, Baltimore, in the
form used by him, and when he had received notice in reply from the
rector, that he could riot consent to his exercising these rights, the
committee consider that the Bishop acted wisely, gently and properly,
in revoking his notice ; the alternative being his sacrifice of what he
believed, and what the judicial authority of his diocese had decided to
be his right, or by attempting to enforce it, involving one of his pres
byters in an ecclesiastical offence, and exposing him to a presentment.
In all times, but especially in troublous times like these, the committee
approve of that course, which, without sacrificing principle, will most
probably avoid strife and scandal.
" In conclusion, the committee recommend the adoption by the con
vention of the following resolutions, viz : "
The first of these resolutions, the only one important here, was as
follows :
" Resolved , 'that a Bishop in order to the exercise of his Episcopal
functions, possesses the right, on occasion of canonical visitations, to
control the services, and to take to himself such portions of them as
he may think proper." This was adopted by a vote of 64 to 11 of the
clergy, and 42 to 20 of the laity.
The report of the minority of the committee was as follows :
" The undersigned, being the minority of the committee to whom
was referred so much of the Bishop's Address as related to his revoking
of an appointment for the visitation of Christ Church, Baltimore, and
the correspondence connected therewith; being unable to coincide
with the sentiments of the majority of said committee, do very respect
fully present the following Report :
"The issue 'created in the correspondence is clearly this — with
what rights is a Bishop clothed at a visitation ? It is obvious that
said visitation refers to the exercise of certain functions ; hence the
office is distinct from other orders in the ministry; and just as ob
vious is it that all such exercise of functions is under restrictions from
the regulations and laws of the Church from the days of the Apostles.
In the language of the learned expounder of the constitution and
canons of our Church — the Rev. Dr. Hawks — the usage of regulating
the exercise of a Bishop' s functions by certain fixed rules, is as ancient as
the office of a Bishop. There is as much of venerable antiquity in the
ON EPISCOPAL VISITATIONS. 311
has been conferred in each church ; and hence that the sole
guide in the inquiry was, whether the right to preach, and
custom of , 'making laws for Bishops, as there is in making Bishops
themselves. It may be safely affirmed, that since the days of the
Apostles, they never were left with no guide but their own discretion.
A law cannot indeed be made wholly to prevent a Bishop from doing a
Bishop's appropriate duty ; but the history of the Church is fall of le
gislation, to regulate the mode in which he shall perform that duty.
The right of ordination belongs to a Bishop — it was his from the be
ginning — he would very properly treat with utter contempt any canon
which professed to take it from him, and give it to deacons for in
stance. But who, from this fact, supposes that the rights and preroga
tives of our Episcopate are violated, because our portion of the Church
of Christ forbids a Bishop to ordain until certain pre-requisites are
complied with ? But we are unwilling to speak further without ad
ducing the clear testimony of the venerated Bishop White. On the
promise of obedience in the ordination of deacons, he thus writes :
' When the passage speaks of godly admonition, it must have refer
ence to some standard, by which they should be directed. This stand
ard must be the various established institutions of the Church, and not
the private opinions of the Bishop. It is well known that the Church
from which this is descended, like the State to which it is allied, is a
government of law, and not of will, and we cannot suppose that ours,
professing to follow in the leading features of its system, should have
designed to reject this so congenial to the still more moderate degree
of authority, which it will be possible in present circumstances to ex
ert. If it should be asked — who shall be the arbiter on any question
which may be raised as to the fitness of the interposition of the Bishop ?
The answer is — the question being understood of admonition out of the
line of strict ecclesiastical proceeding, which ought to be governed of
course by a determinate standard, that each party may judge for him
self, as he shall answer for this, and every other part of his conduct
to Almighty God.'
" Here it is proper to ask — has this Church spoken on the subject
of Episcopal Visitation? Uudoubtedly she has ! First, in the way of
limiting all such visitations to a particular diocese, and restraining
them from all others, except as in the cases, and under the restraints
specified. Second, in the 25th canon of 1832. Here we have the pur
pose of the visitation set forth, viz: To inspect the state of the
Church — the behavior of the clergy, and administering the Apostolic
rite of Confirmation. There is in this canon, also, an opinion given as
to the frequency of such visitations. Beyond this, the canon offers
nothing on the matter before us. Again— canon 26, of the same year,
312 DUTY OF MINISTERS
administer the Communion on a visitation, was anywhere ex
pressly bestowed by canon or rubric of the Protestant Epis
copal Church in the United States.
To those who can regard this proposition as sound, there
is an end of the question, and the claim of the Bishop cannot
specifies the duties of the clergy in relation to such visitations. But
here we have simple provision made for carrying out the foregoing
canon. Obviously there is here no provision for administering the
Communion, or ordering and taking up a collection, as constituting
any part of an Episcopal Visitation. But if the Bishop, by virtue of
the Divine right of office, may insist on the latter, why are regulations
placed around him in the exercise of the other rights pertaining to his
office on such occasions, and none here ? As we have specific canons
regulating the duties of both Bishop and presbyter on these occasions —
but in reference to neither is there any requisitions made on the points
involved in this correspondence — we conclude this Church gives no
such right to the Bishop, nor imposes any corresponding obligation on
the presbyter. The same conclusion, precisely, would follow a fair
induction and interpretation of the rubrics wrought into our Communion
service. So also, we should reach the same results from the careful
specification and provision made for the administration of the Commu
nion by the Bishop, as invariably accompanying certain Episcopal
acts — as at the consecration of Bishops — ordinations of presbyters and
deacons, and consecration of churches.
" But further — this whole matter has been up for action before an
ecclesiastical tribunal of this diocese. Here we might look for a deci
sion ; but we find none. No law is cited, nor is any definitive opinion
offered on the point now before us. The accused was acquitted on this
charge. The court even admit the absence of all canonical legislation
then j and the absence of all subsequent action leaves the matter just
where it stood. There being no law of the general Church — nor any
distinct legislation in our own diocese — and there being a manifest
and careful refraining from all explicitness of expression as to a deci
sion by a court appointed in a given case in this diocese, on this very
point, it is plain to. the undersigned that the question yet remains with
out the initiatory step to a decision.
" The undersigned further report, that the refusal of the Bishop to
administer the rite of Confirmation, and visit the parish of Christ
Church, Baltimore, virtually involves the exclusion of said congrega
tion from all the. benefits of the Episcopal office, and that on grounds
and for reasons not satisfactory to the undersigned, and inconsistent
with the constitution, rubrics and canons of this Church."
ON EPISCOPAL VISITATIONS. 313
be sustained. In the humble judgment of the author it seems
wholly untenable.
But again, another position was taken, a very proper and
legitimate subject for argument and criticism, viz : that the
rubrics and offices and canons of the Church justified the con
clusion, that the power upon a visitation was restricted to the
acts enumerated, and directed to be performed, and thus ex
cluded, by a just inference, any direction of the services, except
in the few special cases mentioned. To this part of the argu
ment I have endeavored to do justice in the note. l
1 It was insisted on the part of the Rev. Mr. Trapnell, that the
31st canon of 1832 applied to the case. It forbids any clergyman of the
Church from officiating either by preaching, reading prayers or other
wise in the parish or parochial cure of another, without his express
permission. That the term Clergyman included a Bishop, and hence as
a general thing, the canon excluded him. Any exceptions must arise
from the rules established in other canons. These exceptions were to
be found in the 25 canon declaring that the Bishop shall visit for the
purpose of examining the state of his Church, inspecting the conduct
of his clergy, and administering the rite of confirmation. And that
the admitted custom of a Bishop's preaching at a visitation, rested upon
the basis of courtesy of the Rector.
The answer to this argument was, that the canon was undoubtedly
adopted for a different purpose and with another intent. It was to pre
vent the intrusion of brother clergymen into a parochial cure, and set
ting up rival congregations. Mr. Trapnell, to a certain extent, agrees
with this. (p. 102.) That if it is made out, that the Bishop as chief
pastor had the right of officiating upon a visitation, it would be a very
strained and unwarranted construction of the canon to hold that it meant
to abolish the right entirely. Something more explicit was demanded.
The difference is very marked. The 31st Canon is, as to ministers, oth
er than the Bishop, only declaratory of the long established law of the
Church, and regulating the application of that law. But clearly, the
laws of the Church, unless we have none but what has arisen from our
own enactments, gave the Bishop a right to officiate on these occasions
before the canon; and if so. then, as clearly, there should be some
thing more decisive to annul that right.
Again, it was pressed that the enumeration in the 25th canon, sec
tion 1, that the Bishop shall visit the churches is his Diocese, u for
the purpose of examining the state of his Church, inspecting the
314 DUTY OP MINISTERS
And here the author cannot but remark that the argument
on behalf of those who deny a Bishop's right seems to resolve
itself into a narrow point. The leading position is " that the
Bishop has no authority antecedently to ecclesiastical law,'*
(TrapnelVs case, p. 110) — meaning, it is presumed, express
institution of the Church. If the question is met on this nar
row basis, the supporters of the right may insist that by such
ecclesiastical law, the power claimed has been recognized and
exerted in every age and every church of which we have a rec
ord; that a known and universal dogma of that law, viz : the
chief pastorship of a Bishop, involves the authority — that corn-
behavior of his clergy, and administering the Apostolic rite of confir
mation," restricted and defined the objects of the visitation, and the
power of a Bishop upon the same.
The answer was, that, if a power to visit, and a power then to direct
the services, is proven to have been vested in a Bishop by the long set
tled law of the Church, it could not be taken away by an enumeration
merely of some of the offices he was to perform on such an occasion,
and of some of the objects to be obtained. The Bishops are directed to
visit — a declaration of what was their undoubted right and duty inde
pendently of the Canon. They are directed to visit for the purposes
pointed out as specially to be observed. Now if the power and obliga
tion to visit had emanated solely from the Canon, the argument would
have been irresistible, which would make that canon the limitation of
the authority. But where are the words of exclusion — of a withdrawal
of a pre-existent power ?
Again — the rubric in the Communion Office was relied upon — that
the Priest was to " order the bread and wine," " to say the prayer of
consecration, &c," while it is provided that the absolution and the
benediction must be pronounced by the Bishop if present.
It was answered that the phrase could not mean parish priest exclu
sively, or it would not merely negative a Bishop's power ever to ad
minister the communion, but prevent the communion in a parish where
there was no priest called, and even the reading of the absolution by
a minister invited to officiate for a day. It meant Priest as designating
a member of that order which could administer the communion, and
a Bishop was clearly such ; that in directing that he only when pre
sent, must perform a certain part of the office, he was not excluded from
the rest.
This course of reasoning, it will be seen, is clearly put forth in the
report of the majority.
ON EPISCOPAL VISITATIONS. 315
ing closer to our own time, it is a power existing in our moth
er Church, and brought with the office of Bishop, to our own.
"When a Bishop exercises a right recognized or conferred by
law, he is as strictly under the law, as when he refrains from
an act prohibited by that law, or adheres to the forms prescri
bed by it for any exertion of power. Thus in the author's
view the position of the opposers of a claim must rest upon
this. That a Bishop has no power in our Church, except such
as by its express enactment or by necessary inference from
such enactment is conferred. If this, in the author's opinion
indefensible proposition, is true, then they who deny the power
are right, but not otherwise.
Another case in relation to the visitation of a Bishop
occurred in Ohio in 1848. In the address of the Bish
op to the Convention of that year, he says : — " If there be
any thing which the discipline of the Church must be consid
ered as designed to secure, it is that the Bishop of a diocese in
his visitation of parishes shall have his official acts therein re
cognized and respected by the parishes as official, and not
treated directly and purposely as being a mere private affair,
which the parish might notice or not, respect or not, at its
pleasure." The case which produced these observations was
in substance this : — A pamphlet which it was alleged reflected
grossly upon the Bishop, had been placed or inserted upon
the records of the parish. The Bishop pointed out the impro
per use thus made of the records. On a subsequent visitation
the Bishop stated that he should visit the parish no more until
the relation between himself and the parish were rectified.
The facts were stated to the Convention, with a clear inti
mation of the Bishop's opinion that the redress he possessed,
viz. — of a public admonition, and a refusal to visit the parish,
was exhausted, and that the remedy was with the Conven
tion by declaring a forfeiture of the right of representation and
union. The Convention ultimately resolved that the conduct
316 DUTY OF MINISTERS, ETC.
of the parish met with its decided and emphatic condemna
tion. That it approved of the determination, of the Bishop to
abstain from further visitation until the authorities gave him
assurances that the pamphlet had never been entered in the
records, and would never be; or else had been or should be re
moved therefrom ; and until they recalled certain communica
tions and charges particularized.
There is also a case in Massachusetts connected with the
Visitatorial power and office. The Bishop has for several years
refused to visit the Church of the Advent.' The grounds of
this refusal are not any violation on the part of the Rector or
congregation, of any rubrical or canonical express regulations.
The Bishop has considered certain arrangements adopted and
certain forms observed in the services within the chancel as
of evil tendency, and injurious to the Church.
Now what is the principle most prominent in all these ca
ses in our Church ? Decidedly the principle, that there is plant
ed in a Bishop some authority not indebted for its birth to the
written law of this particular Church j a power transmitted
and inherent, which positive enactment is necessary to limit,
not to bestow. Where is the written law which enables the
Bishop of Massachusetts to say that he will not visit a particu
lar church, though bidden to visit every church, because in his
conscience he believes that church is wandering into error, but
not by violating any express commandment? "Where is the
written clause in this Church's laws, which justifies the Bish
op of Ohio in refusing his visitations, when the vestry of a
church has placed upon its records, what to him is a disparag
ing and offensive document? Where is the published enact
ment in our code, which sanctions the refusal of the Bishop of
Maryland to visit, because a Rector denies him the right to
administer the Communion ? Each of these cases rests upon
the great principle of a power which positive enactment of our
own never gave — which must be found to be annulled or cur-
USE OF THE BOOK OF COMMON PRAYER. 317
tailed by constitution or canon, by usage, or consent, or else
remains in its primitive, its scriptural, its impregnable force,
dignity, and extent.
TITLE V.
OF THE USE OF THE BOOK OF COMMON PRAYER.
[CANON XLV., General Convention, 1832.]
u Every minister shall before all sermons and lectures, and
on all other occasions of public worship, use the Book of Com
mon Prayer, as the same is, or may be established by the au
thority of the General Convention of this Church. And in per
forming said service, no other prayer shall be used than those
prescribed by the said book."
The first canon on this subject was the tenth of 1789,
which was as follows : — Every Minister shall before all ser
mons and lectures, use the Book of Common Prayer, as the
same shall be set forth and established by the authority of
this or some future General Convention ; and until such estab
lishment of an uniform Book of Common Prayer in this Church,
every minister shall read the Book of Common Prayer direct
ed to be used by the convention of the Church in the State in
which he resides ; and no other prayer shall be used, besides
those contained in the said book.
The 34th Canon of 1808 was identical with the present.
The last clause of the canon of 1789 became inoperative
after the Book of Common Prayer was adopted.
The eighth article of the Constitution prescribed that a
Book of Common Prayer, &c., when established, should be used
in all the dioceses. That book was established — and thus be
came the law of every clergyman in conducting all public
worship. He is forbidden to use anv other prayer than these
21
318 THE USE OF THE BOOK
set forth, and he can neither vary, nor properly omit any of
them as directed to be used. Further, by the 7th article of the
Constitution, he is required to subscribe a declaration, a part
of which is this — " I do solemnly engage to conform to the
doctrines and worship of the Protestant Episcopal Church in
these United States.'" The Prayer Book is the formula of this
worship, and the rubrics being a portion of it, are equally
binding as the rest.
Thus I apprehend that conformity to the Book of Common
Prayer, and the rubrics as part thereof, is as absolutely bind
ing in our country upon every clergyman, as it is in England
under the acts of Uniformity.1
The neglect and omission to use the Book on the occasions
prescribed — the addition of any thing in the shape of prayer to
it, at any rate before sermon ? is therefore a violation of
the constitution and canons, and presentable of course,
"Whether a publication in support of opinions tending to what is
termed the depravation of the Prayer Book is presentable, has
not I believe been judicially settled in any case in our
Church. Upon that subject the case of Sanders vs. Head is
very instructive. An abstract of it is inserted in the note.
The 37th canon of 1832, it may also be observed, includes
" disorderly conduct," among the triable offences.3
1 The acts of Uniformity are chiefly the 13 and 14 Car. 2, cap 4. —
Also the 3 Ed. 6 ; c. 1. 5 Ed. 6. cap. 1. and 1 Eliz. c. 2. Sir John Nich-
oll in Kemp vs. Fricks, 3 Phillimore, 268, says, that the directions con
tained in the rubric are of binding obligation and authority. The ru_
brics form a part of the statute law of the land.
2 See Dr. Hawks' note to Const, and Canons, p. 377.
* Sanders vs. Head. 3 Curteis' Rep. 565. Mr. Head was proceeded
against by articles for having offended against the laws, statutes, con
stitutions and canons ecclesiastical of the realm, in having written and
published , or caused to be published in a newspaper, a letter entitled, &c.
"in which it was openly affirmed and maintained that the Catechism
and the order of Confirmation in the Book of Common Prayer contains
erroneous and strange doctrines; and wherein were also openly affirm-
OF COMMON PRAYER. 319
ed and maintained other positions in derogation and depravation of the
said Book of Common Prayer."
The articles are set forth at length : they recite, but in general terms,
what were the laws and canons against the offence; that the party was
a Minister in holy orders instituted to a particular parish named ; the
publication of the letter, with time and place ; and in a separate article
set forth certain passages of the letter to substantiate the general charge.
The publication being admitted, the questions which arose were as
to the legal sufficiency of the articles, and whether the passages in the
letter were in depravation of the Prayer Book.
One objection was that the statute or canon under which the offence
was to be brought, was not specifically set forth. This was overruled, and
upon this ground, that whenever the general law ecclesiastical is re
lied upon, it is not necessary to plead specifically; where the offence is
one generally cognizable in the Ecclesiastical Court, the particular stat
ute or canon need not be pointed out. That this point was fully dis
cussed in Witson vs. McMath (3 Phillimore 67.) Where however it is
intended to proceed for a particular penalty or punishment given in a
particular statute, the statute should be set out.
It is not necessary to cite the passages which the Court quote as
proving the truth of the allegation. They are calculated to shock the
mind of every one who remembers the ordination vow of a priest with
regard to the Book of Common Prayer.
The learned judge then proceeds to a point of no little moment upon
a question which may arise with us.
He states that the counsel of Mr. Head had contended that the case
must be brought within the 4th section of the act of Elizabeth, provi
ding that if any minister shall preach, declare, or speak any thing in
derogation or depraving of the Book of Common Prayer, or any
thing contained therein, or any part thereof, and shall be lawfully con
victed, he shall be punished, &c. But he says, that the present was not
a proceeding under that statute, but on the general law by which eve
ry clergyman is bound to conform to the Book of Common Prayer, un
der his subscription, and the canon or general law of the Church ; and
that a clergyman could, after this, publish any thing he saw fit against
the Liturgy or Prayer Book, would be a monstrous proposition.
Caudrey's case, 5 Coke 1, is stated minutely from the Report it
self, and deserves much consideration.
CHAPTER V.
TITLE I.
DIFFERENCES BETWEEN MINISTERS AND CONGREGATIONS.
[CANON XXXIV. of General Convention, 1832.]
" In cases of controversy between ministers who now or
hereafter may hold the rectorship of churches or parishes, and
the vestry or congregation of such churches or parishes, which
controversies are of such a nature as cannot be settled by
themselves, the parties, or either of them, shall make appli
cation to the Bishop of the diocese, or in case there be no
Bishop, to the convention of the same.
" If it appear to the Bishop and a majority of the presby
ters convened after a summons of the whole belonging to the
diocese, or if there be no Bishop, to the convention, or
the Standing Committee of the diocese, if the authority
should be committed to them by the convention,) that the
controversy has proceeded such lengths as to preclude all
hopes of its favorable termination, and that a dissolution of
the connection which exists between them is indispensably
necessary to restore the peace and promote the prosperity of
the Church, the Bishop and his said presbyters, or if there be
no Bishop, the convention or the Standing Committee, if the
authority should be committed to them by the convention,
shall recommend to such ministers to relinquish their titles to
the rectorships on such conditions as may appear reasonable
and proper.
322 DIFFERENCES BETWEEN
" If such rectors or congregations refuse to comply with
such recommendation, the Bishop and his presbyters (or the
convention or Standing Committee, if authorized, with the
aid and consent of a Bishop) may, at their discretion, proceed
according to the canons of the Church to suspend the former
from the exercise of any ministerial duties within the diocese
or state, and prohibit the latter from a seat in the convention,
until they retract such refusal and submit to the terms
of the recommendation ; and any minister so suspended shall
not be permitted, during his suspension, to exercise any min
isterial duties in any other diocese or state.
" This canon shall apply also to the cases of associated rec
tors and assistant ministers and their congregations."
The former canons on this subject were the 4th of 1804,
and the 32d of 1808. That of 1804 was the same as the present
canon, with a few verbal variations. That of 1808 was also
the same, but the following clause was added :
" This canon shall not be obligatory upon the Church in
those states or dioceses, with whose usages, laws or charters
it interferes."
This was omitted in 1832. Dr. Hawks states that the
origin of this canon was to meet a pressing and particular
case.1
Bishop "White says, " The canon deserves the name of a
necessary, but it is hoped only a temporary evil. The appre
hension of the abuses of it has been verified."
The Bishop questioned its principle on the ground that
there should be no severance from a pastoral charge except as
the result of a trial for alleged misconduct, which is most
agreeable to the idea of exalting law above will.2
The case referred to by Dr. Hawks is stated in the note.*
1 Constitution and Canons, 34.
a Memoirs of the Church, p. 248, written it is supposed about 1820.
1 The case which led to this canon was that of a minister in New
MINISTERS AND CONGREGATIONS. 323
The first point in consideration is from whom § i.
the application should come, and the method of APPLICATION,
making it. In February and March, 1849, the BYWHOM-
Jersey, arid the history of it will throw light upon the meaning and
intent of the canon.
On the 6th of June, 1804, a memorial was presented to the conven
tion from the churchwardens, vestrymen, and sundry members of
Trinity Church, Newark, stating that unhappy differences existed
between the rector and congregation, requesting the convention to in
terfere, and devise some means to put an end to such divisions, which
threatened the existence of the Church.
A committee appointed for that purpose reported, that considering
that the usefulness of a minister essentially depends on the preserva
tion of harmony between him and his congregation, and that the cause
of religion and prosperity of the Church must be materially affected,
while the disputes and discontents continued in the Church, they re
commended, as the only means in their opinion of restoring peace, that
the Rev, Dr. U. Ogden do resign the rectorship and surrender the pro
perty belonging thereto j and that $250 be allowed and secured to him
from the funds of the church during his life.
The vestry of Trinity Church assented to the terms proposed. The
Eev. Dr. Ogden refused.
The canon of the General Convention was passed in September,
1804.
A special convention was then held in New Jersey in December,
1804. Dr. Ogden read a paper declaring that he withdrew himself
from the Protestant Episcopal Church, but that he would still continue
to discharge his duty as rector of Trinity Church, Newark, and as a
minister of the Church of England, conformably to the constitution and
charter of his Church and his letters of orders from the Bishop of Lon
don. He then withdrew.
A memorial was then presented from the wardens and vestry of
Trinity Church, Newark, stating that a very unhappy controversy ex
isted between the Rev. Dr. Uzal Ogden, the rector, and the wardens,
vestrymen and congregation of the said church, which was of such a
nature as to threaten the very existence of the church ; that it had
proceeded such lengths as to preclude all hopes of an amicable termi
nation, and that, in their opinion, nothing short of a dissolution of the
connection between them could restore the peace of the church.
The facts being established to the satisfaction of the convention, it
was resolved as follows :
"It appearing to this convention that certain controversies are now
existing between the Rev. Dr, U. Ogden, &c., and the vestry and
324 DIFFERENCES BETWEEN
canon received much consideration in a case in the diocese of
New-York. Among other points, this one was discussed.
It was agreed to by all the members of the Standing
Committee, that where the application purported to come
from the vestry, a majority of the members must be parties to
it; that is, one churchwarden and the major part of the
vestrymen.
It was insisted, and by the highest law authority in the
committee, that this should be the action of a vestry strictly,
that is, when duly convened and acting; not of the vestry-
rrien, as distinguished from the legal corporate body. By the
statute of New- York, the wardens and vestrymen form a
vostry by themselves, if there is no rector ; but if there is a
rector, then they together with the rector form it ; and al
though a meeting may be. held, upon notice either of a rector
or a warden, yet the board is not competent to transact any
business unless the rector, if there be one, be present.1
congregation of, &c., which are of such a nature as cannot be settled
by themselves, and which have proceeded such lengths as to preclude
all hope of a favorable termination, and that a dissolution of the con
nection which exists between them is indispensably necessary to re
store the peace and promote the prosperity of the said church, it is
therefore resolved, that this convention advise the said Rev. Dr. U.
Ogden to resign his title to the rectorship of said church within thirty
days from this date, and they advise the congregation, upon such re
signation, to secure to him the sum of $250 per annum during his life.
And if he shall refuse to comply with the terms above-mentioned, then,
and in such case, authority is hereby given to the Standing Committee
of this state, with the aid and consent of a Bishop, at their discretion,
to proceed according to the canons of the Church, to suspend the said
Rev. Dr. Ogden from the exercise of any ministerial duties within this
state/7
It appears that in May, 1805, the Standing Committee acted under
the resolution, and requested the Right Rev. Bishop Moore to meet
them at Newark to give his aid and consent to the proceedings. And
subsequently Dr. Ogden, with the assent and confirmation of the
Bishop, was suspended from the exercise of ministerial duties within
the state.
UAct of 1813. Sess, 36, Ch. 60. 2 R. L., p. 212.
MINISTERS AND CONGREGATIONS. 325
To this it was objected that the canon would thus be
made of no effect at the pleasure of the rector, so far as a
vestry application was concerned ; that by providing for the
case of a difference between a rector and a vestry, it presup
posed a distinction and separation of the two, and that the
phrase should be construed vestrymen.
The provisions as to presenting a clergyman were referred
to. In North Carolina and Florida, for instance, the present
ment may be made by " the vestry of the parish." In Geor
gia, " by the wardens or vestrymen of the church." In Illinois,
"by the major part in number of the vestry of the church."
In Delaware, by a "majority of the vestry in a meeting duly
convened."1 In New- York, in all the canons prior to 1834,
the phrase was, that the presentment should be by the vestry
of the church. In October 1834, it was changed to the present
form, " the major part in number of the members of the ves
try." The question thus arising was not passed upon, because
there was not a majority even of vestrymen signing the appli
cation.
Again, in the same case, it was discussed in what manner
the first step should be taken on the part of the congregation,
where the vestry did not apply. The general opinion was
that the congregation should be convened by a notice, which
any members were competent to give, stating the object of the
meeting, so that a public expression of views should be had.
A resolution to the effect that a controversy existed between
the rector and congregation, which could not be settled by
themselves, and that an application be made pursuant to the
canon in such case provided, would be the proper mode.
After the communication of this opinion, a vestry meeting
having been called by the rector, a resolution was adopted by a
regular majority, setting forth that controversies existed which
1 These provisions will be found in the canons of the dioceses
named.
326 DIFFERENCES BETWEEN
in the opinion of the vestry could not be amicably settled, and
that application be made to the standing committee for pro
ceedings under the 34th canon. This of course was a regular
and sufficient application.
From the statement in the preceding note of the Rev. Mr.
Ogden's case, I cannot determine whether the wardens and
vestrymen had regularly met as a vestry, and adopted the
memorial or not.
In the case of Rev. Cave Jones, in 1811, the vestry was
regularly convened, (he was however an assistant minister,)
and the resolution recited, that differences and controversies
existed between the Rev. Cave Jones, one, &c., and this vestry,
arising out of the publication entitled "A Solemn Appeal to
the Church," which are of such a nature as cannot be settled
between them. And it was resolved that application be made
to the Bishop of the diocese pursuant to the 32d canon of the
General Convention. And that he be requested, with the as
sistance of his presbyters, to proceed upon the subject matter
according to such canon.
§ 2- The application being made in a sufficiently for.
? mal and regular mode, the Bishop becomes justified
APPLICATION m Baking the nex* s*eP under the canon, that is t0
see that notice of the application has been or shall
be given.
In the case of Mr. Ogden, this was done by the Convention
ordering the Secretary to serve a copy of their resolution upon
him, and the Standing Committee gave him notice of their
proceedings. In the case of Mr. Jones, the Bishop, upon re
ceiving the resolutions of Trinity Church, directed a copy of
the proceedings to be served upon him, with a notice of the
time and place of his convening the presbytery. And in the
case in New- York in 1849, before mentioned, the committee
intended to give the rector notice, and a copy of the papers
laid before them before proceeding. He however had procured
MINISTERS AND CONGREGATIONS. 327
them, and transmitted his own reply and documents before
that could be done.
Although such a notice to and hearing of the rector is not
prescribed, yet it is suggested that it would be proper to give
it before a call of the presbyters.
The next, and a very important point of the § 3-
canon is, as to the inveteracy of the disputes ; ATURE OF
THE DISPUTES.
whether the controversies cannot be amicably set
tled. Undoubtedly the ecclesiastical authority is not bound
to interfere until it is fully satisfied that the dissensions are
so fixed and obstinate that an amicable settlement is almost
impossible. In determining whether the initiatory step should
be taken, regard may be had to the matters which are pre
scribed in the canon as justifying what is in fact a sentence
of resignation of a cure. The ecclesiastical authority is to
find that all hope of a favorable termination of the contro
versy is precluded — that a dissolution of the connection is
indispensably necessary to restore the peace of the Church,
and promote its prosperity.
Again, what is the description and extent of the dissen
sions which warrant an interference under this canon ? No
strictly correct definition can be made. On the one side, how
ever, they are not to be such as are the proper subjects of a
presentment, or duty to the Church requires that proceeding.
On the other side they ought not to be those occasional and
almost unavoidable differences or bickerings which will arise
between a pastor and portions of his congregation. The ques
tion can only be rightly determined according to the circum
stances of each case, cautiously bearing in mind the sound
principle, that the door should not be too readily opened for
such applications, and that such a severance of the relation is
against the policy and wishes of the Church.
As to precedents — in the case of Dr. Ogden the ground of
difference was a tendency to doctrines and practices incon-
328 DIFFERENCES BETWEEN
sistent with the principles and rules of the Church, an over
bearing conduct and assumption of control in temporals. In
the case of the Rev. Mr. Jones, a pamphlet had been published
which the committee of the vestry thus speak of :
" The committee having considered the subject referred to
them, are of opinion that the pamphlet lately published by
the Rev. Mr. Jones, calls for the serious attention of the
Board. The evident tendency of appeals to the public on the
subject of private differences between ministers of the Gospel,
must in all cases be to weaken the respect justly due to the
clerical office, to destroy its influence, impair the discipline
and government of the Church, and to bring reproach upon
the cause of religion."
This report was adopted by the vestry. The denial of the
imputed tendency of the publication, the assertion of the right to
issue it, surely constituted a difference of a very serious nature.
§ 4- It will be noticed that the Bishop is to summon
HO ARE ft-Q ^ pregbyters belonging to the diocese to act in
TO BE
*ne case. This summons of the whole number
seems indispensable, and Dr. Hawks remarks that
it renders the canon very inconvenient, and that the practice
has been to convene a portion only. ( Constitution and Canons,
p. 316.) This can scarcely be right. Although a majority of
the presbyters who actually assemble will be sufficient to de
cide, yet all should be called. It is not stated in the report of
the case of the Rev. Cave Jones how the presbyters were
summoned, but the act of suspension recites that that was
done by the Bishop and the majority of the presbyters assem
bled.1
Again, in case of there being no bishop, the application is
to be made to the convention, and I presume that under the
canon, the convention may act without any formal convoca
tion of the presbyters. Indeed these are supposed to be present.
1 DAVIS' Report of the Case, p. 11.
MINISTERS AND CONGREGATIONS. 329
Another question arises : Suppose the power is delegated
by the convention to the standing committee, may they not
act without summoning the presbyters ? This seems the
true meaning of the canon, although the convention in delega
ting the power might prescribe such a summons, or direct a
certain number of presbyters to be convened. But as to the
final act of sentence upon a refusal to abide by the decision,
the standing committee must call in the aid of a Bishop, and
so, I apprehend, must the convention. Indeed the general
canon as to sentences makes this necessary.
By the 6th canon of the diocese of Maine, in case of dif
ferences between the misisters and their congregations, when
the diocese is without a bishop, the standing committee shall
have the power of settling such differences, agreeable to canon
34, of the General Convention of 1832.
In 1847 the Committee on Canons, proposed a new canon
in place of the present, providing that whenever a difference
shall exist between a rector, whether a Bishop or presbyter,
and the congregation or congregations of his parish, and there
is no probability of an amicable adjustment, the same, not be
ing the subject of impeachment or canonical censure, may be
referred to the determination of arbitrators.
The mode of appointing the arbitrators is then prescribed,
and the award it is declared shall be binding and conclusive
upon the parties. The proposition was not acted upon.
The provision in the Scottish Church is this — (Canon 35 of
1838. 4 Burns 701.) " In any differences which may arise be
tween a pastor and members of his flock, which cannot be
amicably settled, the matter in dispute must be carried in the
first instance before the ordinary ; and if either party think
himself aggrieved by his decision, then the case may be appeal
ed by letter or petition to a synod of Bishops, and no appeal
against the ordinary's decision shall be admissible unless the
contending parties solemnly promise to hold the sentence of a
*«
330 DIFFERENCES, ETC.
majority of the Bishops present final and conclusive." By the
34th Canon a synod of Bishops is to be held annually, and not
less than three must be present.
As far as my information extends, the canon is not now
looked upon with the same disfavor as it was by Bishop
White. The fact is, the canon is a compromise between the
principle of indissolubility of the relation of pastor and people,
except on grounds justifying a presentment, and the absolute
right of the people to dismiss at will. There are sometimes
occasions of disagreement, which without much fault on eith
er side, poison the connection and destroy its benefits. Per
haps the Church has acted wisely in suffering a separation in
such cases ; at least she has been wise in requiring the inter
position of her highest authorities, and their sanction in effect
ing it. '
It may be submitted whether the appointment of arbitra
tors to act as a quasi tribunal for the carrying out the disci
pline of the Church has any precedent in its history, especially
as the arbitrators are to be or may be laymen exclusively ;
and that a decision may be followed by the suspension of a
1 The author would suggest for consideration, an amendment of the
Canon of the following nature :
The clause in the first paragraph u in case there be no Bishop, to
the Convention of the same," to be altered to, " the Standing Commit
tee of the same."
The Bishop shall direct the Standing Committee, or if the applica
tion is made to the latter, the Standing Committee shall proceed, to in
quire whether such controversy has proceeded, &c. (following the lan
guage of that clause of the canon.)
In making such inquiries, the Standing Committee may depute one
or more of their own body when they shall deem it advisable, to make
inquiry as to facts, and to report in writing upon the same.
Where the application has been made to a Bishop, the Committee
shall report the facts to him, with their opinion upon the case.
The Bishop, or Standing Committee, if satisfied that the case is
within the canon, shall recommend to the Minister to relinquish his
Rectorship ; (pursuing the'residue of the canon, with some apparent
necessary alterations.)
DISSOLUTION OF THE CONNECTION. 331
clergyman. l It appears to the author (he submits it with great
respect) that the novelty of the proposition is against its
admission ; that in this, and in similar cases, the Standing
Committee of a Diocese in its ordinary capacity, is the proper
body to take all the initiatory measures, to make all the re
quisite inquiries, to institute necessary proceeding, and
collect and embody facts ; and then to present the result to
the Bishop for final decision, with an expression of their own
opinion. >J
TITLE II.
DISSOLUTION OP THE PASTORAL CONNECTION.
[CANON XXXIII of General Convention, 1832.]
" § 1. When any minister has been regularly instituted or
settled in a parish or church, he shall not be dismissed with
out the concurrence of the ecclesiastical authority of the dio
cese ; and in case of dismission without such concurrence, the
vestry or congregation of such parish or church shall have no
right to a representation in the convention of the diocese until
they make such satisfaction as the convention may require.
1 It is true that arbitrators, in the usual sense of judges chosen by
mutual consent, are well known in the canon law. But their decisions
were subject to a reduction by the usual tribunals, being equivalent to
an appeal. (VAN ESPEN, Tit. Arb.: Tome 2.) The proposed canon
gives the right to either party to make the application, and coerce the
arbitration. The decision also is to be final.
2 In Feb. 1849, a case under the canon occurred in Ohio. The Bish
op and a number of the clergy assembled to consider the case of the
Rev. Mr. Loutrel. They agreed to recommend the relinquishment of
the party's title to the rectorship, his salary to be paid to the date of
the sitting of the Council. A resignation followed.
The canon was also applied in the case of the Rev. Norman Nash,
in New Jersey, in the year 1834.
332 DISSOLUTION OF THE
" Nor shall any minister leave his congregation against
their will without the concurrence of the ecclesiastical au
thority aforesaid ; and if he shall leave them without such
concurrence, he shall not be allowed to take a seat in any
convention of this Church, or be eligible into any church or
parish, until he shall have made such satisfaction as the ec
clesiastical authority of the diocese may require.
" § 2. In case of the regular and canonical dissolution of
the connection between a minister and his congregation, the
Bishop, or if there be no Bishop, the Standing Committee,
shall direct the secretary of the convention to record the same.
But if the dissolution of the connection between the minister
and his congregation be not regular or canonical, the Bishop
or Standing Committee shall lay the same before the con
vention of the diocese, in order that the above-mentioned
penalties may take effect.
" This canon shall not be obligatory upon those dioceses
with whose usages, laws or charters it interferes."
The previous canons were the 2d of 1804, and the 30th
of 1808. The former was almost identically the same as the
present. In the latter the last clause, as to its obligation in
particular dioceses, was inserted.
This was induced by the ac.tion in South Carolina and
other states, before mentioned. (Chap. /., p. 121.)
The framers of this canon sought to discourage the too
common change of the relation of pastor and people. To the
29th canon of 1808 was added a clause peculiarly applicable
to the present subject : "It is understood that the Church de
signs not to express an approbation of any laws which make
the station of a minister dependent on anything else than his
own soundness in the faith, or worthy conduct."
And such has been the universal policy of the Church. It
seems to have been felt that there was a nearness and sacred-
PASTORAL CONNECTION. 333
ness of tie between such parties as admitted not of severance,
but for legal offences, or with the intervention of grave au
thority. The beautiful language of Lord Stowell as to an
other relation may well be applied to this : " When people
understand that they must live together, except for a very
few reasons known to the law, they learn to soften by mutual
accommodation, that yoke which they know they cannot
shake off. They become good husbands and good wives from
the necessity of remaining husbands and wives ; for necessity
is a powerful master in teaching the duties it. imposes."1
"We find at the close of this canon also the clause before
adverted to, that it shall not be obligatory in dioceses, with
whose laws, charters or usages it interferes.
Now, by both the canon and the common law, it was well
settled that an incumbent once duly instituted was in for
life, and could not be removed by the patron. He could only
be dismissed upon a just sentence. The authority of Lord
Coke as to the common law is frequently given.2
Yet a resignation into the hands of the Bishop was per
mitted, while one into the hands of the patron was forbidden
by both laws.3 We can have no better judge in this case than
Lynwood, who says positively, that " Renuntiatio fact a in
manus Laid etiam sponte non tenet" and therefore it must
come into the hands of him who hath the ordinary jurisdiction,
and therefore hath power to admit.4
The learned founders of our canons had undoubtedly this
1 Evans vs. Evans, 1 HAG. Cons. Rep., p. 36. The reasoning of Mr.
Hume is also very strong, and admirably expressed. (Essay 19, on
Polygamy and Divorce.)
s 1 Inst., 343, b. 2 Inst., 357. NOT'S Rep., 157.
3 This was forbidden by various canons, (among them, the 3d of the
4th Council of Lateran.) They are stated in BISHOP STILLINGFLEET'S
Discourse on Bonds of Resignation, p. 318.
4 Ibid., p. 319. NOY'S Rep., 157. 2 COKE, 63, 198. GIBSON'S Codex,
vol. 2, page 869.
22
334 DISSOLUTION OF THE
great principle deeply fixed in their minds. They also found
a system of usurpation upon this principle by the laity, ex
tensively prevalent. They were compelled to respect it so
far as to insert in the canon the clause in question ; but the
qualification annexed to Canon 29 of 1808 equally applies*
The phrase employed in the first part of the canon is, regu
larly instituted or settled ; thus meeting the case when the
office of institution has not been used.
As to the mode of proceeding, the Standing Committee of
the diocese of NewT-York, in a case in June, 1848, adopted the
following : " A copy of a resolution of a vestry was received
fully dismissing the minister, and asking a concurrence there
in. The committee resolved that, in their opinion, a written
application should be made by the vestry, setting forth the
grounds and reasons why a dismission was sought, and which
rendered it expedient or necessary, and asking the concur
rence of the committee to such dismission being made ; that
an absolute dismission without it was premature and ir
regular."
Afterwards, a copy of a resolution of the vestry was
transmitted, resolving that an application be made for the
concurrence of the ecclesiastical authority in a dismission,
with a written application, setting forth the reasons and facts
on which it was grounded. A copy of this had been sent to
the minister, with notice that it would be presented to the
committee.
The reasons assigned being satisfactory, a resolution was-
passed to the following effect: "Application having been
made to this committee by the vestry of Church, in the
town of , for its concurrence in the dismission of the
Rev. for certain reasons therein stated ; and it ap
pearing that such reasons are satisfactory, and notice of this
application having been given to the said the Rev. — , and
he not appearing to oppose the same, thereupon it is resolved
PASTORAL CONNECTION. 335
that the assent and concurrence of this committee, as the ec
clesiastical authority of the diocese, be, and the same is here
by given to the dismission of the said the Rev. from
the parish and Church of ."
The canon, it will be perceived, forbids both the dismis
sion of the minister by the congregation, and the relinquish-
ment by the minister. It has been considered in Connecticut,
that a resignation and acceptance should receive a formal
concurrence of the ecclesiastical authority. In the journal of
that diocese for 1814, are to be found two cases, in which the
intention to resign, and the acquiescence of the parishioners
in such request at a regular meeting, was recited ; and there
upon, the Standing Committee made a formal record of their
concurrence in the resignation, and declared the pastoral re
lation to be thenceforth dissolved. (Journals 1814, p. 35,
Ed. of 1842.) I believe that the ordinary practice is to re
ceive and file the notice of the resignation and assent of the
vestry. The concurrence of the committee may be implied
from this, yet a resolution upon the minutes would be pre
ferable.
A question of some interest arose in a case before the
Standing Committee of New-York, under this canon. The
minister of the parish had ceased to officiate within it for
about three months, and had officiated for the most of that
time in another and vacant parish. It was not yet ascertain
ed, however, whether this was under a regular call, or a tem
porary invitation renewed from time to time. An opinion was
expressed by the author, and agreed to by some of the other
members, that if the fact of a formal call and acceptance had
been made out, the incumbency of the first parish would have
been ipso facto vacated, so that the vestry could have made
a new call, and the committee could have issued letters of
institution to a new minister. Care, however, should be
taken that sufficient documentary evidence of the fact is
336 DISSOLUTION OP THE CONNECTION.
supplied.1 It was unanimously agreed, that the facts as they
stood, warranted a concurrence in the act of dismission.
1 Bishop Gibson states that a voidance of one benefice takes place
by the acceptance of another, incompatible without a dispensation.
This is the effect of an act of parliament, where the first benefice is of
the yearly value of eight pounds or over; if under eight pounds, it was
void by canon law, and the patron might present a clerk, and require
institution immediately. Codex, p. 832, Tit. 34.
The Council of Lateran, held in 1215, passed a canon declaring that
whoever shall take any benefice with cure of souls, if he before shall
have obtained a like benefice, shall ipso jure be deprived thereof; and
if he shall contend to retain the same, he shall be deprived of the other ;
and the patron of the former, immediately after his acceptance of the
latter, shall bestow the same upon whom he shall think worthy.
The canons of this council are recognized as adopted into the Eng
lish ecclesiastical law.
In Alsten vs. Atlay, 7 ADOL. & ELLIS (Exch. Chamber) 811, the court
(per C. J. Tindall) said : " There is no doubt that the right of presenta
tion [upon acceptance of a second benefice] accrued by the canon law,
namely by the fourth Council of Lateran ; but it is equally clear that
this canon has been recognized in this country, and has become part of
the common law of the land. Holland's case, (4 Rep. 75, and Digby's
case, 4 Rep. 78, and Evans vs. Ascough, Latch, 243.) The point to be
decided is, what is the nature of that right given by that canon to the
patron. Is it an immediate right of presentation in the then patron,
when he chooses to exercise it without doing anything positively to
avoid the interest of the then incambent, or is it only a right to avoid
that interest by some act, and then to present, or to avoid it by the act
of presentation only, such interest of the incumbent being valid, and
the church full in the meantime ?
u That although the books use some variety of expression on the sub
ject, yet the substance of the authorities is, that the patron has a complete
light to present upon the cession by institution to the second benefice.
No further act is necessary in order to make his presentation valid."
The Chief Justice then states the authorities: "Digby's case is a
prominent one, where Chief Justice Popham and the whole court said,
" that the first benefice is void by^institution to the second, without de
privation or sentence declaratory; although no lapse shall incur unless
notice be given to the patron."
It may be useful to notice, that upon a vacancy of a benefice, if the
patron does not present within six months, the right falls to the Ordi
nary, which is termed a lapse.
The case of The King vs. Priest, SIR W. JONIS, 335, is also thorough
ly in point.
After quoting the canon of Lateran, he says : <: The fair construction
RELINQUISHMENT OF THE MINISTRY. 337
TITLE IIL
RELINQUISHMENT OF THE MINISTRY.
[CANON XXXVIII, General Convention 1832.]
" § 1. If any minister of the Church, (against whom there
is no ecclesiastical proceeding instituted,) shall declare to the
Bishop of the diocese to which he belongs, or to any ecclesias
tical authority for the trial of a clergyman, or where there is
no Bishop, to the standing committee, his renunciation of the
ministry, and his design not to officiate in future in any of J;he
offices thereof, it shall be the duty of the Bishop, or where there
is no Bishop, of the standing committee, to record the declara
tion so made.
" § 2. And it shall be the duty of the Bishop to displace hirn
from the ministry, and to pronounce and record in the presence
of two or three clergymen, that the person so declaring has
been displaced from the ministry in this Church.
" § 3. In any diocese in which there is no Bishop the same
sentence may be pronounced by the bishop of any other dio
cese invited by the standing committee to attend for that
purpose.
" § 4. In the case of displacing from the ministry as above
provided for, it shall be the duty of the Bishop to give notice
thereof to every bishop of this Church, and to the standing
committee in every diocese wherein there is no bishop. And
in the case of a person making the above declaration for causes
not affecting his moral standing, the same shall be declared."
The earliest canon which contained any regulation upon
this subject, was the first of 1801. By that it was provided,
that if any person having been ordained in this Church, or
of the canon is, that upon acceptance of the second benefice, the clerk
is deprived of the first jure ipso."
338 RELINQTJISHMENT
having been otherwise ordained and admitted a minister in
this Church, shall discontinue all exercise of the ministerial
office without lawful cause, or shall avow that he is no longer
a minister of the Church, or shall live in the habitual disuse
of the public worship, or of the holy eucharist, according to
the offices of this Church, such person on due proof of the same,
or on his own confession, shall be liable to be degraded from
the ministry.
In the 26th canon of 1808, these provisions were inserted
in the canon enumerating the offences for which ministers
shall be tried. The punishment however, was to be admoni
tion, suspension, or degradation, as the case might require.
Then followed the 2d canon of 1817, in the words of the
present 38th canon, except that the words, (against whom
there is no ecclesiastical proceeding instituted,) are not to be
found in it; and that the punishment might be admonition,
suspension, or displacement.
By the 7th canon of 1820, that of 1817 was repealed, and
another enacted precisely the same in substance, and merely
with the insertion of a few words to prevent a doubt which
might have arisen under the former, as to the right to displace.
Neither of these preceding canons, contained the clause
as to no ecclesiastical proceeding being instituted against the
minister. That clause was introduced in the 3d canon of
1829, which also directed that the sentence to be pronounced
should be displacement exclusively.
Then in the revision of 1832, the present canon was adop
ted almost identically the same as that of 1829.
§ l. To understand what cases are within the canon
CASES WITHIN it will be useful first to advert to the general law
THE CANON. of the church independently of it.
By the 6th of the Apostolical canons it was provided that
OF THE MINISTRY. 339
no Bishop, Priest or Deacon should undertake any secular em
ploy upon pain of deposition. Bishop Beveridge observes
that for a clergyman to engage in any lawful business for the
necessary defence or good of the Church, such as to attend
synods or state assemblies, comes not within this, or any
similar canon. Bingham thus states the rule. (Antiq. Book
vi. cap. 4, § 1.) " I come now to speak of a third sort of
laws which were like the Jews sepimenta legis, a sort of
by-laws and rules made for the defence and guard of the
former. Among these we may reckon such laws as were made
to fix the clergy to their proper business and calling, such as
that which forbade any clergyman from deserting or relinquish
ing his station without just ground or leave granted by his su
periors. In the African Church, from the time any man was
made a reader, or entered into any of the lower orders of the
•Church, he was presumed to be dedicated to the service of
God, so as thenceforth not to be at liberty to turn secular
again at his own pleasure. And much more did this rule hold
for Bishops, presbyters, and deacons. Therefore Cyril of Al-
lexandria, as he is cited by Harmenopilus says in one of his
canons, that it was contrary to the law of the Church for any
priest to give in a libel of resignation, for if he is worthy, he
ought to continue in his ministry, and if he be unworthy, he
should not have the privilege of resigning, but be condemned
and ejected. The Council of Chalcedon orders all such to be
anathematized as forsook their orders to take upon them any
military office, or secular dignity, unless they repented, and
returned to the employment which for God's sake, they had
first chosen."
One of the Constitutions of 1571 was thus : Semel autem
receptus in sacrum ministerium ab eo imposterum non disce-
dit; nee se aut vestitu, aut habitu, aut in ulla vitae parte
geret prolaico (Apud. GIBSON'S Codex, Vol. 1, p. 184.)
And the 76th canon of 1603 declares that no man, being
10 RELINQUISHMENT
Imitted deacon or minister, shall from thenceforth voluntari-
f relinquish the same, nor afterwards use himself in the
ourse of his life as a layman upon pain of excommunication.
As elucidating the English law, I refer to the ease so
nuch discussed, of the Rev. Mr. Shore inl844.! It is neces
sary to understand clearly the point decided.
Mr. Shore being in priest's orders in the Church of Eng
land, had received a license from the Bishop of Exeter to offi
ciate in a private unconsecrated chapel. That license was
subsequently revoked. Notwithstanding this revocation he
continued, as the libel alleged, to read the services and per
form the offices of the church in that chapel. For this he was
prosecuted.
It is to be here noticed that there is not a rule of English
canon law, more entirely settled than that which forbids any
minister from officiating in an unconsecrated place without a
license ; nor that other rule which authorizes a Bishop to re
voke such license.
Mr. Shore defended himself chiefly on the ground that he
had qualified himself as a dissenting minister under one of the
Toleration Acts, by which, upon the taking certain oaths, and ob
serving other provisions, a party was exempted from the penal-
ies for non-conformity imposed by previous acts of Parliament.
The reply given by both the judges who pronounced upon
the case was this — That what was pleaded in defence was
sufficient to exempt him from the statutory penalties ; but that
did not touch the case. By his ordination vows, and the can
ons of the Church which he was subject to, he could not relin
quish the ministry and have his orders cancelled of his own
will and without the consent of his diocesan, unless by process
of law ; that as neither of these facts appeared, he therefore
remained a minister of the Church, and as such punishable for
offences committed against her rules of government.
1 1 ROBERTSON Ecc. Cases 335. 8 ADOLPHUS & ELLIS 640.
OF THE MINISTRY. 341
Thus Sir Herbert Fust in his opinion says : " Mr. Shore ad
mitted that he received the order of priest from the Church of
England. Here again it was to be proved that a clergyman
can divest himself at his pleasure of his orders; but I heard noth
ing to establish that position. The spirit of the canon is cer
tainly at variance with such a position, as well as common
sense."
And Lord Denman when the case was in the Queen's
Bench observed : " Mr. Shore cannot divest himself of the cha
racter of a priest in holy orders with which he has been cloth
ed by the authority of the Church of England when he was
ordained by one of the Bishops, and when he promised canonical
obedience to that Church ; from that character, or from that
vow and promise, he can only be released by the same authority
which conferred the one, and enjoined and received the other."
In a letter of the Bishop of Exeter published in the Eng
lish Churchman in 1848, he says, " that it is utterly untrue
that Mr. Shore is interdicted by the law of England, from
preaching the Gospel under pain of being immured within the
walls of a prison. There is no law ecclesiastical or temporal,
in this part of Great Britain, which would subject Mr. Shore
to imprisonment for a single hour for such an act. True it
is, that having been ordained a deacon and presbyter in the
Church, he cannot at his mere good pleasure divest himself of
the sacred characters which under the most solemn vows to
God and man, he sought and received from his Bishop. A ju
dicial process is necessary, which however, is a matter of very
easy and inexpensive accomplishment to any one, who is ear
nest in seeking from conscientious motives to be relieved."
It must be remembered in judging of the case of Mr. Shore,
that he did not disclaim his character of a minister of the Church,
nor unite himself with the Dissenters, and thus open the door
for the judicial proceedings referred to ; but he insisted upon
retaining his station — claimed to be in orders — and actually
342 RELINQUISHMENT
read the morning services, and otherwise officiated in an un-
consecrated place, after the revocation of his license.
I find in the proceedings of the Church in Connecticut, two
cases in which the principle of a renunciation was recognized
before the first canon; but I am informed- that in both in
stances the minister was a deacon, and that the distinction
was taken by Bishop Jarvis between the case of a deacon
and a priest in this particular.1
Our own canon has fully met the case by substituting
what may be termed an admission, for the articles and process
of the English system. It remains to be seen in what in
stances it may be applied.
It is clearly applicable to the case of a clergyman renounc
ing the ministry with a view to fall into the ranks of the
laity. If upon an unhappy discovery that the assumption of
his vows was made with haste and improvidence, or that sub
sequent development of character, or subsequent events have
forced the conviction of unfitness upon his mind, he seeks to re-
i The following act took place at a convocation held at Stratford,
June 3. 1795. Present, Bishop Seabury, &c. "Whereas the Rev. D.
P. has requested of the Bishop and his clergy in convocation, liberty to
resign the pastoral charge of the parishes of R. &c., as well as to re.
linquish totally the exercise of ecclesiastical functions — therefore, voted
that his request be granted, and the resignation of his letters of orders
be accepted. (MSS. Minutes of Convocation.)
So in the year 1804, the convocation resolved as follows : " Whereas,
Ezra Bradley, having been ordained deacon in this Church, hath de
clared his determination of relinquishing all claim to the character and
function, and for a long time hath discontinued all exercise of the said
office of deacon, and as appears fully to our satisfaction hath lived in
the disuse of the public worship and holy eucharist according to the
offices of the Church — therefore with the approbation of the clergy in
convocation, we Abraham, Bishop of Connecticut, degrade the said
Ezra Bradley from the office of deacon, and do pronunce the ordination
of the said Ezra Bradley to the holy office of deacon, to be henceforth
of no force or effect."
It will be noticed that this sentence proceeds upon other clauses of
the canon of 1801, as well as that of a declared relinquishment.
OF THE MINISTRY. 343
tire, the Church has opened to him this ready and quiet mode of
departure. The seeds of affection may still linger in his breast,
and prompt him, as little as possible, to affect her peace. The
pressure of conscience forbids him to remain in his station, and
the pride of human nature may rebel at an open trial and public
exposure. The procedure under the canon affords the opportu
nity of enforcing discipline in the spirit of peace.
Again, the canon has been treated as applicable to those
who have been guilty of moral depravity, in the ordinary signi
ficance of the word. We have the authority of Bishop Onder-
donk of New- York, for saying that he was informed by Bishop
White that the original and leading motive for its introduction,
was the great difficulty of obtaining testimony -an cases of
this very nature. Bishop Onderdonk was then Secretary of
the Convention.
Upon this topic I add an extract from the report of a sub
committee of the Standing Committee of New- York, made
in the case of Dr. Forbes and others in February, 1850 : " It is
also certain that this canon has been used in the diocese of
New- York for the displacement of clergymen chargeable with
immoral conduct, and with respect to whom the requisite
testimony for the support of the charge might have been ob
tained. It would be painful to mention names, but a refer
ence to the report of Bishop Hobart for 1823, and of Bishop
Onderdonk for 1843, will furnish to those who were acquaint
ed with the parties, adequate proof of the assertion. Indeed,
it is known to have been the opinion of the former, and is that
of the present Bishop, that even where testimony can be pro
cured, there are many cases in which the summary mode af
forded by the canon of ridding the Church of an unworthy
clergyman, is much better than to encounter the uncertain
ties, delay, scandal, and often great expense which attend a
trial."
Again, the canon has been applied, and legally applied, to the
344 RELINQUISHMENT
case of a clergyman whose moral character, in the usual
sense is unassailed, but who renounces from an unhappy
change of opinion as to doctrine or government ; and even ex
pressly with the view and intention of uniting himself with
some other denomination. In the report before referred to,
it is stated as follows : " It is believed that this canon has
been, from the first, considered to be applicable to the case of
clergymen desiring to leave the ministry of the Church, for
the purpose of connecting themselves with other denomina
tions. It was so applied in this diocese between the con
ventions of!822 and 1823, in the case of the Rev. Asahel Davis,
who became a Universalist preacher. It was also applied in
the case of the Rev. Mr. Tatham and the Rev. Jas. R. Bailey.
" It has also been so administered in other dioceses. In
Massachusetts, in the case of Mr. Askins, who joined the
Romish Church, in that of Mr. Thorn in Delaware, who join
ed the Lutherans, and Mr. Mecham in Virginia, who united
with the Methodists."
It appears to have been sometimes considered that dis
placement is a punishment of less severity, or at least less
ignominious, than degradation. Bat the 39th canon of 1832
has effaced all such distinction, if it ever existed. " Deposi
tion, displacing, and all like expressions, are equivalent to
degradation." Whether the conviction proceeds upon dharges
involving the most gross criminality, or upon changes of
opinions which preclude the further serving at the altar of the
Church, the sentence is the same, and cannot be greater.
And even prior to the passage of this canon, it appears to
have been the opinion of Bishop Ravenscroft, that the sen
tence of displacement would preclude a restoration of the sen
tenced clergyman to orders. Dr. Hawks states, that the
Bishop would not degrade a minister who retired from con
scientious scruples, but displaced him ; yet, according to his
recollection, thought that he could not be restored. I believe
OF THE MINISTRY. 345
that the term displacement is not to be found in any other
canon than the present, and in the 39th of 1832. !
The question of the form of the renunciation § 2.
underwent much consideration in the case of the THE FORM OF
Rev. Dr. Forbes, in New- York, in 1849-1850. I DENUNCIATION-
add the statement and reasoning of the sub-committee upon
that subject, which express in substance the opinion of the
majority of the Standing Committee.
" It is requisite that there should be satisfactory proof of
the declaration having been made, for if the proof is defective,
as it would be if the language were ambiguous, it would be
in the power of the clergyman at a subsequent period to deny
the fact of the declaration, and to claim that the action of the
ecclesiastical authority, and the sentence pronounced upon it,
were void.
" What the proof of such renunciation shall be — whether
it shall be oral or written — whether in the precise words of
the canon, or in other words of equivalent import — and whether
the declaration shall be recorded in the very words in which
it was made, or in substance merely, are all points which are
undefined by the canon, and are consequently left to the dis
cretion of the ecclesiastical authority. The canon does not
prescribe any formula in which the relinquish ment is to be
made. It does not even require that it should be in writing."
" Impressed with a sense of the necessity of the caution re
quisite in the exercise of this power, the Bishop of this diocese
in the year 1839, addressing the Standing Committee as his
council of advice, requested their opinion, whether the ex
pression to him by a clergyman in reference to the ministry :
" I have resolved to abandon it forever," or words of similar
' In several of the former canons of Virginia, the phrase " Dismis
sion/' and "Dismissed," were used, and once in a sense distinguished
from Degradation. See Canon 28 and 33 of 1785, 27 and 28 of 1787,
and 27 and 28 of 1791.
346 RELINQUISHMENT
import, might be taken for the declaration supposed by the
canon, and whether in recording a declaration, he was to
state the words actually used, or to make the record in the
precise terms of the canon. In reply, the Standing Commit
tee, acting as a council of advice, gave it as their opinion,
"that the most safe and convenient rule will be to require
from every clergyman desirous to relinquish the ministry, a
written declaration under his hand, not only of his renuncia
tion of it, but also of his design not to officiate in future in
any of its offices ; and 2d, that the declaration should be re
corded in the very words of the original."
" In deference to this precedent, as well as from a convic
tion of its wisdom, the Standing Committee has made it a
rule to request of every clergyman relinquishing the ministry,
a written declaration in the words of the canon. But this
rule is one of their own creation, not prescribed by any law,
but adopted as the ( most safe and convenient mode ' of car
rying out the provisions of the Church. As a matter of
course, it will operate in all ordinary cases ; but instances
may occur, in which it will be found safe and expedient to
relax it. In one case in this diocese, the letter of relinquish-
ment was sent from a foreign country, and was in words sub
stantially of the same import as those in the canon, but not
in the very language. It was received and the clergyman
displaced."
" The renunciation, where the offence is not of moral de
pravity, may be considered as the substitute of the proof of
any charges which should be preferred. It is of itself a plain
confession of unfitness for the ministry, and being accompa
nied with a resolution to forsake communion, is a confession
of having rejected the Church herself, with all her authority,
decrees, and institutions. Why then convene a court and
summon witnesses to prove a violation of ordination vows in
specific instances, or to substantiate particular charges of
OF THE MINISTRY. 347
heresy or schism, when the renunciation itself is a confessed
violation of all ordination vows, and of every standard of doc
trine, Prayer Book, Offices, Articles and all ! This seems
much like torture after confession."
The first clause of the canon is, that " if any
§ 3.
minister of this Church, against whom there is no ECCLESIASTI_
ecclesiastical proceeding instituted, shall declare to CAL PROCEED-
the Bishop, &c., his renunciation of the ministry, ING DE:PEND-
it shall be the duty of the Bishop to displace him
from the ministry."
The only case under this clause which I am aware of,
besides that in New- York in 1850, (afterwards noticed,) is
the case of the Rev. Mr. Dashiell in Maryland, in 1815. The
Standing Committee reported to the Bishop, that common re
port charged Mr. Dashiell with scandalous, immoral and ob
scene conduct, and recommended an investigation. This was
commenced. The accused objected to the inquiry, and to the
tribunal which was to conduct it. He addressed a letter to
the Bishop, requesting that the proceedings might be stopped,
and if not stopped, that his letter might be considered as a
renunciation of all connection with the Episcopal Church.
That renunciation was not accepted or recognized by the
Bishop. The Standing Committee resolved, that considering
such unrecognized renunciation made to escape investigation,
as utterly invalid, the Rev. Mr. Dashiell be informed that the
trial must proceed. He failed to appear, and was deposed.
In the year 1828, the following proceeding took place in
Connecticut. The Rev. Mr. M. Raynor was presented " for
being in the habit of countenancing and disseminating opin
ions which are contrary to the doctrines of the Protestant Epis
copal Church in the United States, for being in the habit of
public preaching without using the liturgy, and that his con
duct had been unbecoming the Character of a Christian minis
ter."
348 RELINQUISHMENT
The Standing Cornmitte being informed by the Bishop
that Mr. Raynor would immediately make the declaration re
quired by the 7th canon of 1820, to enable the Bishop to sus
pend him from the ministry without a trial, proceedings on
the charge were postponed.
At a subsequent meeting, information was received from
the Bishop that the Rev. Mr. Menzies had been suspended.
And it appears from the address of Bishop Brownell that
Mr. Menzies had relinquished the ministry and connected him
self with another religious communion. He had communica
ted "the relinquishment of his official standing as an Episco
pal Clergyman in the Diocese," that "I might record the
ame," and also " take such other measures as in my judg
ment the canon might require." (Journal Conn. 1828.)
Now in 1829, at the meeting of the General Convention
first ensuing this act, the clause as to the existence of an ec
clesiastical proceeding was adopted.
The case of the Rev. Dr. Forbes in New- York, in 1849-
50, caused so much consideration and discussion of this por
tion of the canon, that a full statement of it, will, it is thought,
aid the judgment upon its meaning.
The facts were these : On the 21st of November, 1849, a
letter was addressed by Dr. Forbes to the president of the
Standing Committee, as follows. This was not according to
the letter of the canon. The president was informally advised
by one or two members to pursue the same course as had
been taken in the case of Mr. Shimeall,1 and endeavor to ob
tain a communication strictly in its terms. The attempt
1 In the case of Mr. Shimeall, the letter of relinquishment was
couched in language quite as explicit as that of Dr. Forbes. The
Standing Committee was about acting upon it as sufficient, when re
ference was made to the case of Mr. Harison, as reported by Dr. Hawks.
The letter of Mr. Shimeall was, " that from that date he withdrew
from all further connection with the Protestant Episcopal Church as a
presbyter thereof, and proposed to ratify such act by participating in
OF THE MINISTRY. 349
was made, and a reply procured, still' not containing the very
language. In this position, and on the 27th of December,
1849, a presentment, dated that day, was handed to the
Standing Committee, and that presentment was, as defined
by the presenters in a subsequent paper, " for schism and
non-conformity to the worship and discipline of the Protestant
Episcopal Church of the United States."
On the same 27th of December, a sub-committee was ap
pointed to consider and report upon the whole subject, and
advise the course of action. On the 28th of December, a
member of that committee having had some communication
with Dr. Forbes, received a message from him, and thereupon
addressed an inquiry in writing to him, whether he understood
that message aright; viz: that " he (Dr. Forbes) intended in
his letter to the President to declare his renunciation of the
ministry of the Protestant Episcopal Church, and his design
no longer to officiate in any of the offices thereof." To this an
answer in the affirmative was made in writing, and subscribed
by him.
On the 8th day of January, 1850, the Standing Committee
ordered the declaration to be recorded, reciting these commu
nications. A remonstrance was addressed by the Rev. Pre
senters asking for a reversal of this action, and a copy was
laid before the Right Rev. Bishop Chase of New Hampshire.
the holy Communion next Sunday, in the Presbyterian Church, of
which the Rev. Dr. Phillips is pastor." The Committee requested the
President to communicate to Mr. Shimeall their view of the propriety
of a more explicit letter. This was done, and a further letter was re
ceived couched in the very words of the canon.
The letter of Dr. Forbes was as follows : " You may conceive that it
is with no ordinary emotion that I feel myself constrained to declare to
you as President of the Standing Committee, that it is my intention no
longer to exercise the ministry of the Protestant Episcopal Church, it
having become my conscientious conviction that duty to God requires
me to unite myself to the one holy catholic and apostolic Church, in
communion with the See of Rome."
23
350 RELINQUISHMENT
The Committee did not change their decision, and the sentence
O *
wa^ pronounced by the Bishop on the 26th day of February,
1850.
In coming to this determination, it was assumed by some
of the members, and not controverted by any, that apart from
the presentment, the two communications brought the case
within the very terms of the canon, even in the judgment of
the one who most strictly required a scrupulous conformity.
And it is confidently submitted, that had there been no present
ment, this position could not admit of cavil.
Next, it is indisputable, that the period contemplated at
which the ecclesiastical proceeding has been instituted, is the
time of the declaration by the minister. It is not the time of
the record, nor of course that of pronouncing the sentence.
By way of example, if a perfect renunciation was written,
and transmitted to the President, but from absence or acci
dent, was not laid before the Committee at the time when a
presentment of subsequent date was received, and even acted
upon, action would be superseded by the renunciation when
subsequently communicated.
And this is defensible upon two grounds. In the first
place it seems to be the intention of the Church to give a
right to the minister, complying with the prescriptions of the
canon, to bring her condemnation upon himself in this man
ner, and to be shielded from a public trial and exposure of
his weakness or his crimes.
And in the next place, if this were doubtful, yet when
there was in existence a renunciation sufficient to a common
intent before presentment, and made sufficient to the letter
afterwards, not induced by the fear of it, there must be a dis
cretionary power in the ecclesiastical authority to say, that
the fallen member might in this mode be cut off, and the sen
tence in this mode reached.
Upon such views, as well as others which influenced them,
OF THE MINISTRY. 351
the course of the majority of the members of the Standing
Committee was clear. They had held that the original letter
was sufficient, but upon reasons of prudence and expedience,
that it was best to seek for a more literal declaration.
The Committee had not rejected that letter. It remained
before it, and was open for its action. And when the present
ment was considered, and the questions, delay, and agitation,
it would produce were weighed, they held that a higher expe
diency, in the secured peace of the Church, overruled the
expediency which had induced their former course, and war
ranted their resorting to the first letter as containing at its
date a sufficient relinquish ment. They proceeded upon the
ground that they and the committee had never gone further,
than to seek for more than the first letter contained, and had
never pronounced it insufficient, nor deprived themselves of
the power to act upon it.
The author of the present work differed in one particular
from his associates, and as he was alone in the opinion, he
feels how improbable it is, that he should be right. But he
cannot refrain from stating the point.
In his judgment, the letter of renunciation must be in the
identical words of the canon. It is to be followed by the
highest penalty known to the Church, the irremissible and
final excision from her orders. The analogy of criminal law,
though by no means to be followed in all its technical nicety,
furnished a valuable and safe principle of guidance. It is
settled that where an offence is created by statute, it is not
enough to lay the indictment in equivalent terms, or words
sufficient to a common understanding. The ipsissima verba
must be employed. If a presentment had been framed under
this canon, it would have been necessary to have employed
its very language ; and the evidence must have been co
extensive with the allegations. Now here the letter of re
nunciation under this canon was to supply the place of
352 RELINQUISHMENT
presentment and proof. It ought to be as full and as direct,
as they must be.
If this view may sometimes be attended with incon
venience, the remedy is under the second section of the 37th
canon of 1832.
But the author was equally clear as his associates, in the
right and duty of the Standing Committee to proceed under
this canon, and for these reasons. The last communication of
Dr. Forbes was not a new renunciation — it was not even a
statement, that he now wished his previous letter to be in
terpreted as an entire compliance with the canon. It was a
full, positive, unequivocal exposition and declaration of what
that first letter did mean, and was intended to mean, and to
be. It expressly announced, that in using the language he
then used, he did intend " to declare his renunciation of the
ministry, and his design not to officiate in future in any of
the offices thereof." This was done, when, as the sub
committee was satisfied, he was ignorant of the presentment,
made the day before. The last communication could justly be
treated as relating back to the former-, as forming part and
parcel of it, and could upon sound principles justify the con
sidering the date of the first as being the date of the whole.
The last clause of the canon is, that in the case
§ 4-
CLAUSE AS TO °^ a Person making the declaration for causes not
MORAL STAND- affecting his moral standing, the same shall be
"«• declared.
From the context, it would seem as if it were only necessa
ry to insert the clause in the notice. And as in the diocese in
which the case occurs, the record shows the ground on which
the sentence proceeds, this is probably all that is requisite.
In the cases in the diocese of New-York in 1849, 1850, of a
relinquishment in order to join, in the one case the Presbyterian,
and in the other the Romish Church, not involving immorality
in its popular sense, the clause was omitted. In the case of
OF THE MINISTRY. 353
the Rev. Mr. Huntingdon in 1850, in a case of the same cha
racter, the notice given by the Bishop of South Carolina did not
contain it.
Dr. Hawks, in his comments upon the 39th Canon, ques
tions the wisdom of the rule of the Church, in rendering a res
toration to office impossible in every case after a sentence of
degradation, and applies his objections particularly to the case
of a minister imbibing and preaching false and erroneous doc
trines. And by the 31st canon of the Church of Scotland,
(1838) when any clergyman shall disobey any of the canons,
he shall, after the first and second admonition by the proper
judge be rejected, and publicly declared to be no longer a cler
gyman of the Episcopal Church in Scotland. But afterwards,
on giving sufficient evidence of a sincere repentance, he may
be restored to his former station by the sentence of a majority
of the Bishops.
The discussions of the cases in New York in 1849, 1850,
gave rise to the inquiry how those who had been degraded
from their offices as ministers of the Church stood in relation
to communion with it, and the expression of an opinion by
several, that some regulation was expedient. About the same
period, the same subject was undergoing great consideration
in England. The case of the Rev. Mr. Shore led to a bill cal
led the Clergy Relief Bill, brought in first in 1848 ; again
with material changes in March 1849 ; and as amended by a
select committee, in April of that year. That committee, com
posed of members of very different views, at last agreed upon
the following provisions : the party was to sign a certificate
declaring that he was a Protestant and a Dissenter from the
United Church of England and Ireland ; that this should be
transmitted to the Bishop, who within thirty days after its re
ceipt, should record the same in his registry, and should further
record in his registry sentence of deprivation of such person of
354 RELINQUISHMENT
all preferment he may hold within the diocese, 'and also sen
tence of deposition of such person from holy orders.
These sentences were to have the like effect to all intents
and purposes as if they had been pronounced by an Ecclesias
tical Court having jurisdiction.
Another provision was added that " no clergyman shall be
prosecuted, or proceeded against, punished or held liable for
damages in any court or otherwise, for refusing to administer
any rite or sacrament of the said United Church to or in res
pect of any such person."
Mr. Bouverie, the author of the measure, and some others
of the committee retracted their consent, and ultimately oppo
sed the bill.
It was repugnant to the opinions of two opposite parties.
One body of Churchmen thought it did not go far enough ;
that it ought to recognize and provide for the exercise of the
right of the Church to pronounce sentence of excommunica
tion upon the seceders, in conformity with the spirit of several
of her canons directed against schism and schismatics. An
other party opposed the proviso clause, exempting any clergy
man from punishment who should refuse to administer any
of the offices of the Church to such a seceder. It is urged
with irresistible strength of reasoning, in an article in the
London Quarterly Review, (January, 1850,) that under such
a doctrine, the dissent which is recognized by the law has no
limit of belief — its only condition being that it differs from
the belief of the Church of England ; and as the persons so
dissenting shall not lose their title to exact from the clergy,
under civil penalties, the administration of the rites, or of
certain of the rites of the Church, consequently religious be
lief is to be no condition of membership in the Church, or of
its spiritual privileges. In this legislation is involved the
four-fold principle, of tyranny towards the clergy, of ecclesi-
OF THE MINISTRY. 355
astical anarchy, of absolute religious indifference, and of pub
lic demoralization."
With equal force does this writer vindicate the right of the
Church to exclude from her fold one who has abandoned her
service. " To allow that the one clergyman who refuses the
administration of her rites to such a person, shall be exempt
from punishment — and another, of different views, may ad
minister them, is a violation of her discipline, is grossly un
just to her integrity, and pregnant with evil."
Yet the Churchmen of England would have accepted the
bill as reported by the committee, in spite of that anomalous
and exceptionable clause. The opposition to it is the most
extraordinary of all those late assaults which have struck
alarm into the heart of the Church of England. To refuse
her the power, which every denomination of Christians in the
kingdom, nay, every petty association for any business object,
possesses and exercises, of driving utterly from her bosom her
erring members, is the merest wantonness of intolerance. It
is a startling proof of that untameable ferocity with which her
enemies pursue her.
The position of the law in our own Church is not free
from embarrassment. Fortunately, the question is not en
tangled with any connection with the law of the state. Yet
this delicate case may occur. A clergyman possesses
the right to demand the administration of the commu
nion. That right is not effaced by a sentence of degrada.
tion. He is yet in lay communion. Unless, therefore, his
case is brought within the rubric admitting of repulsion, it
will be difficult to say that he can be lawfully excluded ; and
if the sentence has proceeded upon the ground of a renuncia
tion, for example, for causes not affecting moral character,
under the rubric, great doubt would exist whether the repul
sion would be justifiable.
One mode of meeting this difficulty is suggested — that
356 MINISTER ABSENTING HIMSELF
the Bishop may, when a clergyman is suspended or degraded,
pronounce also a sentence of separation from the communion
of the Church, provided, that that part of the sentence, in
case of degradation, be remissible by a majority of the Bishops
of the Church, when assembled as a House of Bishops, or
otherwise, under any canon.
The author makes this a suggestion merely, well aware
with how much caution legislation should proceed on such a
subject.
TITLE IV.
OF A MINISTER ABSENTING HIMSELF FROM HIS DIOCESE.
[CANON II. General Convention, 1841.]
" When a clergyman has been absent from his diocese
during two years, without reasons satisfactory to the Bishop
thereof, he shall be required by the Bishop to declare in writ
ing the cause or causes of his absence, and if he refuse to give
his reasons, or if these are deemed insufficient, the Bishop
may, with the advice and consent of the clerical members of
the Standing Committee, suspend him from the ministry,
which suspension shall continue until he shall give in writing
sufficient reasons for his absence, or until he shall renew his
residence in the diocese, or until he shall renounce the min
istry according to Canon 38 of 1832."
In the case of such suspension as is above provided for,
" it shall be the duty of the Bishop to give notice thereof to
every Bishop of his Church, and to the Standing Committee
of every diocese wherein there is no Bishop."
There was no previous canon upon this subject.
It contemplates, though it is not confined to, a case of ab
sence at the time when the reasons are required ; and the
Bishop is then to make the requisition. Care must therefore
FROM HIS DIOCESE. 357
be taken that the requisition be brought home to the party,
and sufficient proof of this must be made. Thjs may some
times be very inconvenient, or impracticable. It may be
suggested whether two years absence, without reasons given
by the party himself, should not be sufficient to ground the
suspension. It is always in his power to communicate with
the Bishop.
The sentence of suspension ought to specify the conditions
upon which it will terminate. (See Canon 3 0/1847.)
There ought to be, as I apprehend, a formal declarative
record by the ecclesiastical authority of the termination of
the sentence, and probably this authority should be the same
which pronounced the sentence, viz., the Bishop with the ad
vice and consent of the clerical members of the Standing
Committee.
This is the rule in England in cases of excommunication.
Under a former system, when a sentence was pronounced,
and a party imprisoned under the writ de excommunicato ca-
piendo, he was absolved and released by a writ de excommu
nicato deliberando. This issued upon a certificate of the
Bishop. (GTIBSON'S Codex, 1102.) Under the statute 53 Greo.
III., cap. 127, the writ de contumace capiendo is substituted,
and a writ of deliverance issues, upon satisfaction being
made. (BURNS by PhilL, vol. 3, p. 211, et seq.) In FLOYER'S
Proctor's Pract., p. 156, is the form of a decree of absolution
from a sentence of excommunication.
Again, it is almost an invariable rule that, even in cases
in which a party is declared excommunicate or suspended
ipso facto, a judicial declaration and promulgation is neces
sary. Bishop G-ibson does not entirely admit this, but the
late case of Titmarsh vs. Chapman (3 CURTEIS' Rep., 618)
appears to establish it conclusively. The Bishop admits it
to be rule at common law.
The Institutions of the Church, collected by Johnston, are
358 REMOVAL FROM ONE
full of cases in which the penalty of excommunication or
suspension is pronounced to be incurred ipso facto, yet a ju
dicial sentence is essential ; and what has in this formal man
ner been adjudged, should in the like manner be discharged.
So in a Constitution of Othobon it was directed : Statui-
mus ut cum aliquem Excommunicationis, Suspensionis, vel
Interdict! sententia contingent relaxari, mandetur alicui, ut
relaxationem hujusmodi publice nunciet locis et temporibus
opportunis. (De Publ. AbsoL)
Athon adds, " Ubi fuit publicatus Excommunicatus, fyc"
TITLE V.
OF THE REMOVAL OF A MINISTER FROM ONE TO ANOTHER
DIOCESE, &C.
[CANON Y. of General Convention, 1844.]
" § 1. No minister removing from one diocese to another,
or coming from any other state or territory, which may not
have acceded to the Constitution of this Church, shall be re
ceived as a stated officiating minister by any parish of this
Church, until he shall have presented to the vestry thereof a
certificate from the ecclesiastical authority of the diocese to
which said parish belongs, approving him as a clergyman in
regular standing. And in order to obtain such certificate,
every minister desirous to change his canonical residence,
shall lay before the ecclesiastical authority of the diocese in
which he designs to reside, a testimonial from the ecclesiasti
cal authority of the diocese in which he has last resided, in the
following form, viz :
" ' I hereby certify that A. B., who has signified to me his
desire to be transferred to the diocese of , is a presby
ter (or deacon) of this diocese, in regular standing, and has
not, as far as I know or believe, been justly liable to evil report
TO ANOTHER DIOCESE. 359
for error in religion or viciousness of life, during the three
years last past.'
" When the ecclesiastical authority thinks proper, further
statements may be added to the above letter. But in case
the minister desiring to be transferred has been subjected to
inquiry or presentment, on any charge or charges of miscon
duct, thereby rendering the terms of the aforesaid testimonial
inadmissible, he may nevertheless be transferred if the charges
have been withdrawn with the approbation of the ecclesiastical
authority, or if he have been acquitted on trial, or if he have
been censured or suspended, and the sentence has had its
course, so that he has been restored to the regular discharge of
his official duties. And in all such cases, the ecclesiastical
authority of the diocese concerned, shall instead of the fore
going testimonial, certify to a statement of the facts, with as
much detail as may be necessary to inform the ecclesiastical
authority to which he desires to be transferred, of the true
standing of the party.
" § 3. No clergyman canonically under the jurisdiction of
any diocese of this Church, shall be considered as having passed
from under such jurisdiction to that of any foreign Bishop, or
in any way ceased to be amenable to the laws of this Church,
until he shall have taken from the Bishop with whose diocese
he was last connected in this Church, or from the standing
committee of such diocese, if it have no Bishop, the letter pro
vided for in section 1 of this canon, and until the same shall
have been accepted by some other Bishop, either of this
or some other Church.
" § 4. The ecclesiastical authority in all cases under this
canon, is to be understood to refer to the Bishop, or in case
there be no Bishop, to the majority of the clerical members of
the standing committee, duly convened. And if the clergy
man desiring to be received come from a state or territory,
not in connection with this Church, and having no convention,
360 REMOVAL FROM ONE
then the above testimonial or statement shall be signed by at
least three presbyters of this Church. Nor shall any minister
so removing be acknowledged by any Bishop or convention as
a member of the Church to which he removes, until he shall
have produced the aforesaid testimonial or statement.
" § 5. The above testimonial or letter of dismisson, shall
not affect the canonical residence of the minister receiving it,
until he shall be received into some other diocese by the
Bishop or ecclesiastical authority thereof. And if the clergy
man to whom the letters of dismission are given shall not pre
sent them to the Bishop or ecclesiastical authority to whom
they are directed, within three months from the date thereof,
if designed for the United States, and within six months from
the date thereof, if designed for the Church in a foreign coun
try, the letters may be considered null and void by the said
Bishop or ecclesiastical authority, and shall be null and void
if not presented as above in six months after date if intended
for this country, and in twelve months after date if intended
for a foreign country."
The first canon on this subject was the 3d of 1804, the
next the 31st of 1808 ; then the 4th of 1829, the 35th of 1832,
the 4th of 1835, and the 7th of 1841.
Dr. Hawks, (Cons, and Canons 32, &c.) has pointed out
the various defects in the canons prior to that of 1835, and
the successive amendments adopted to remove them. The
first two sections of that of 1835 correspond precisely with the
first two of the present law. The third section was the same
as the present fourth. The present section 3 was not in that
canon. The present 5th section embraces section 4, and the
last clause of the fifth section, with this difference. By the for
mer provision, if the letters of dismission were not presented
within three months after the party had taken up his abode in
the diocese to which he had removed, the letters were de
clared absolutely null and void. It will be seen that the reg-
TO ANOTHER DIOCESE. 361
illations of the present canon in this respect are much more
practical and definite.
It is to be noticed that strictly letters dimssory was a
term applied only to the instrument by which one Bishop
sanctions the ordination of a deacon or priest by another Bish
op.1 By the general canon law, if a Bishop ordained a priest
without such letters, his punishment was a sentence of suspen
sion for one year. This was the rule established at the Coun
cil of Lyons in 1271. But in England, by the Constitution of
Peckham (1230) the punishment was a suspension from con
ferring the same order until he made sufficient satisfaction.
This was the law, as I gather, until the canon of 1603, (the
34th) by which the Bishop ordaining without such letters, was
to be suspended from making either deacons or priests for two
years. This prohibition extended to ordaining an inhabitant of
another diocese to be a deacon, as well as ordaining a deacon
to be a priest.3
But the letters commendatory (liter OB commendatitice,) of
the canon law, more closely resemble our letters of dismission.
They are mentioned in the provincial constitutions of Walter,
and of Thomas Arundel.3
In the latter, "it is provided that no one not born or or
dained in the province should be admitted to officiate, unless
he brought with him his letters of orders, and letters com
mendatory of his diocesan." 4
1 Lynwood thus defines the meaning; Dicuntur dimissoria quia per
cos Episcopus dimittit subditum suum et licentiat ut alibi posset promoveri,
et quod aliui Episcopus possit cum or dinar e.
2 All this appears in the Codex, vol. 1, p. 163, 164.
1 See these constitutions at the end of the edition of Lynwood and
John of Athon, printed at Oxford, 1679.
4 It may be noticed, however, that Lynwood quotes a canon of Inno
cent, to the following effect: Literce Dimissori^^ Haec dicuntur per
quas aliquis dimittitur a jurisdictione, seu potestate sui praelati."
(Lib. 1, Tit. 9, DE PEREG. Clericis.)
362 REMOVAL, ETC.
It is stated by Bingham, (Book 2, cap. 4, § 5,) that ac
cording to the rules and practice of the ancient Church, no
Christian could travel without taking letters of credence with
him from his own Bishop, if he meant to communicate with
the Church in a foreign country. These letters were of seve
ral kinds, according to the different occasions or quality of
the persons who carried them. They are generally reduced to
three kinds — commendatory, communicatory, and dismissory.
The first were such as were granted only to persons of quali
ty, or to persons whose reputation had been called in question,
or to the clergy who had occasion to travel into foreign coun
tries. The second sort were granted to all who were in the
peace and communion of the Church, whence they were also
called pacifical, and ecclesiastical, and sometimes canonical.
The third sort were given only to the clergy when they were
removing from one Church to settle in another, and they
were to testify that the bearers had their Bishop's leave to de
part, whence they were called dimissory, and sometimes also
pacifical. All these went under the general name of formed
letters, because they were written in a particular form, with
some particular marks and characters which served as special
signatures to distinguish them from counterfeits. Respecting
all of them it it to be observed, that it was the Bishop's pre
rogative to grant them, and no other person might presume to
do so, at least without his authority and permission."
In some of the dioceses, a communicant changing his resi
dence, and thus dissolving his connection with a parish, shall
be required to present a certificate of good standing from the
minister of such parish, or if there be no minister, from one
of its wardens,- before being enrolled as a communicant of any
other parish. (Canon 15 of Ohio.)
CLERGYMEN OFFENDING, ETC. 363
TITLE VI.
OF A CLERGYMAN OF ANY DIOCESE CHARGEABLE WITH MISDEMEANOR
IN ANY OTHER.
[CANON XL. of General Convention, 1832.]
" § 1. If a clergyman of the Church in any diocese within
this Union, shall in any other diocese conduct himself in such
a way as is contrary to the rules of the Church and disgrace
ful to his office, the Bishop, or if there be no Bishop, the
Standing Committee, shall give notice thereof to the ecclesi
astical authority of the diocese to which such offender belongs,
exhibiting, with the information given, the proof of the charges
made against him.
" \ 2. If a clergyman shall come temporarily into any
diocese under the imputation of having elsewhere been guilty
of any crime or misdemeanor, by violation of the canons or
otherwise, or if any clergyman, while sojourning in any dio
cese, shall misbehave in any of these respects, the Bishop,
upon probable cause, may admonish such clergyman and for
bid him to officiate in such diocese; and if after such prohi
bition the said clergyman so officiate, the Bishop shall give
notice to all the clergy and congregations in said diocese, that
the officiating of such clergyman is, under any and all cir
cumstances, prohibited ; and like notice shall be given to the
Bishop, or if there be no Bishop, to the Standing Committee
of the diocese to which the said clergyman belongs; and such
prohibition shall continue in force until the Bishop of the first
named diocese be satisfied of the innocence of the said clergy
man, or until he be acquitted on trial."
The former canons were the 2d of 1792 and the 28th of
1808.
They were the same as the first section of the present ca
nons, introducing the word district as well as diocese.
The continued superin tendance of a Bishop over a clergy-
364 CLERGYMEN OFFENDING, ETC.
man, although out of his diocese, is recognized in old and
modern canons. A Bishop was prohibited from receiving a
minister from another diocese without permission. By the
16th of the apostolical canons, if he did not receive him, he
was to be excommunicated as a teacher of disorder.
Dr. Hawks (p. 355) observes, that a case may arise not
free from difficulty, where a clergyman, a mere visitor in a
diocese, violates some canon of that diocese, there being no
such canon in his own, and where a penalty is annexed to the
violation of the canon in the diocese in which he offends. He
concludes that such a clergyman is bound to know the canons
of the diocese in which he resides, that the offence should be
punished by his own Bishop, but whether by the infliction
prescribed in the diocese in which the offence is committed or
not, should be in the latter Bishop's discretion.
I presume that the phrase " proofs," in this section, means
only the statements or documents, or voluntary affidavits,
which may have been laid before the Bishop. No judicial in
quiry could be instituted by him.
There was a case decided in the Court of Delegates in
Ireland, in 1838, which bears upon this subject. (The Office
of the Judge, &c., vs. Nixon, 1 MILWARD'S Rep., 390, n.)
Nixon, rector of one parish, went into another, and as a cler
gyman belonging to a society called " The Home Mission,"
read some prayers, sung a hymn, and preached in the market
house. He had been previously warned not to do so by the
rector. He was cited before the Archbishop of Armagh, the
diocese in which the act was committed, for having preached
in a private house without permission of the diocesan or vicar.
An exception to the jurisdiction was taken, because the party
was not, at the time of issuing the citation, or for three months
previous, a resident of that diocese.
The court referred to the 21st, 38th and 39th canons of
the Irish Church, and held that the offence was in the nature
OFFICIATING IN OTHER CURES. 365
of a contempt or violation of the authority of the Bishop of
the diocese in which the offence had been committed, and
was consequently local, and subject to the jurisdiction of that
diocese only.
That the general rule of the ecclesiastical law was, un
doubtedly, that the dwelling place of the accused is the forum
to which he is to be cited. But there were exceptions which
took the case out of the general rule that forum seqruitu
reum, and gave locality of jurisdiction from the place of
delictum. That Lynwood supported this view, De Jud.,
Lib. 2, Tit. 1.
The citation in such cases is served with the aid and con
sent of the jurisdiction where the offender besides.
We see that the principle of this case, is so far adopted in
the second section of our canon as to admit of an admonition
by the Bishop of the diocese where the offence is committed,
and a prohibition from officiating within it.
TITLE VII.
OF MINISTERS OFFICIATING IN THE CURES OF OTHER CLERGYMEN.
[CANON XXXI. General Convention, 1832.]
" § 1. No clergyman belonging to this Church shall offi
ciate either by reading, praying, preaching, or otherwise, in
the parish or within the parochial cure of another clergyman,
unless he has received express permission for that purpose
from the minister of the parish, or cure, or, in his absence,
from the churchwardens, and vestrymen, or trustees, of the
congregation.
u § 2. When parish boundaries are not defined by law or
otherwise, each city, borough, village, town, or township, in
which there is one Protestant Episcopal Church or congrega
tion, or more than one such church or congregation, shall be
held for all the purposes of this canon, to be the parish of
24
366 OFFICIATING IN THE CURES
parishes of the Protestant Episcopal clergyman or clergymen
having charge of said church or churches, congregation or
congregations.
" § 3. But if any minister of a church, shall from inability
or any other cause, neglect to perform the regular services to
rhis congregation, and refuse without good cause his consent
to any other minister of the Church to officiate within his
cure, the churchwardens, vestrymen, or trustees of such con
gregation, shall on proof of such neglect and refusal before the
Bishop of the diocese, or if there be no Bishop, before the
standing committee, or before such persons as may be deputed
by him or them, or before such persons as may be by the regu
lations of this Church in any diocese vested with the power of
hearing and deciding on complaints against clergymen, have
power to open the doors of their church to any regular minis
ter of the Protestant Episcopal Church.
" § 4. In case of such a vicinity of two or more churches,
as that there can be no local boundaries draw^n between their
respective cures or parishes, no minister of the Church other
than the parochial clergy of the said cures, shall preach within
the common limits of the same, in any other than in one of
the churches thereof, without the consent of the major number
of the parochial^clergy of the said churches."
The first canon on^this subject was the sixth of 1792. It
was precisely^in the language of the first clause of the present
canon, marked § 1, and it gave the unqualified power to a
minister of a parish to exclude the services of any other, and
did not provide for the case of his inability to officiate, and
refusal to permit another to do so.
The 5th canon of 1795, made provision for such a case in
the language of the present canon, retaining the first clause,
and adding what I have marked § 3,
OF OTHER CLERGYMEN. 367
In the seventh canon of 1795, the clause of the present,
which I have marked § 4, was adopted.
The 33d of 1808 embodied all the previous regulations
into one enactment. In 1829, the clause was adopted which
I have marked as the second section of the present canon.
The reason for the passage of this section is thus stated by
Dr. Hawks.1 A clergyman of another state had accepted an
agency of the American Sunday School Union, arid addressed
the scholars in a Presbyterian Church, near the only Episco
pal Church in the place, contrary to the remonstrance of the
rector, who was answered, that it was intended to address
Presbyterians and Congregationalists, who were not within
his parochial cure.
It may perhaps be questioned, whether such an address to
persons of other denominations, or scholars, is even now within
the canon.
In 1832, the canon was passed as it now stands, with all
the preceding provisions embodied in it.
In 1844 a resolution was offered to amend this canon by
inserting, after the word congregation in the first paragraph,
(marked § 1,) the following : " Provided always, that
said restriction do not extend to the organization of new
parishes within the limits of another, nor to the officiating
of clergymen in said parish when duly invited by the author
ities thereof." (Journal 1844, p. 37.) The Committee on
Canons reported that it was inexpedient to adopt it, inasmuch
as the object of the proposed amendment was sufficiently pro
vided for in the canon as it now stands, (Ibid. p. 41.)
The Committee on Canons reported in the year 1847 an
amended thirty-first canon, which contained the following*
clause : — No new congregation or parish shall be organized
within the limits of an existing parish or parishes as defined
in section 1, without the previous consent of the minister or
1 Constit. and Canons, p. 291.
368 OFFICIATING Iff THE CURES
ministers of such parish or parishes, unless the same shall have
been permitted by the Diocesan Convention, or in its recess
by the Standing Committee.
This subject of intrusion is one of great delicacy, and no
little difficulty. It is to be observed, that the defining of
boundaries by law which the canon mentions, is the law of
the state ; and it was before shown that except in some South
ern Dioceses, the limits of a parish, as such, are rarely so de
fined.
But when there is no such law denning the boundaries,
then the canon provides that the limits of a village, city or
town are to designate them. If there is but one church in a
city or town, the case is plain. The parish is commensurate
with the town or city ; the clergyman of the single church
is the minister of the parish. But if there are two or more
churches in the town or city, with ministers in each, then
such town or city shall be held to be the parishes of such min
isters for the purposes of the canon. As I understand it, this
means, that the city, &c., comprises as many parishes as there
are congregations or churches with ministers in charge of
them within its limits ; and that each of such ministers has a
parish within such city.
To a certain extent this furnishes a definite rule. Thus
the church edifice and precincts, such as the burial ground, are
exclusively within the parochial cure of the rector, for the
purposes of this canon. Every service therefore performed with
in these limits, may be performed by another with his consent,
and may not be performed without it.
But as to services, such as baptisms and marriages, per
formed beyond the precincts of the church, the meaning of
the phrase must be extended to embrace them. By treating
the term church or congregation, (which prima facie is used
collectively,) as comprising the members of the church or con
gregation — those who have legally united themselves with
OF OTHER CLERGYMEN. 369
it, the object of the canon will be obtained, and I think its
true meaning reached. The marriage or baptism of any
members of the Church or their children in private places,
without the clergyman's consent, is equally forbidden, and a
matter of discipline. If this view is not correct, then either
the consent of all the ministers in a city or town is required
for such private service, or any clergyman is at liberty to
perform them without any consent.1
By the last clause of our canon, the consent of a majority
of the parochial clergy is also made necessary, a requisition
extremely inconvenient in large cities with many churches. A
practice has therefore grown up of getting the consent of the
rectors in the vicinity, which may be the only practical expo
sition, but is not defensible under the canon. Upon the lat
ter part of this section of the canon Dr. Hawks remarks : " A
question arises under the last sentence of this canon not with
out interest. It concerns the erection of new churches in our
large cities and towns. The usual mode pursued is (and
such is the regular and canonical course) for the clergyman
who desires to raise a new congregation to apply for the as
sent of such of his brethren as may have churches near the
scene of his intended operations. Although a body of laymen
may erect an edifice, yet no minister would have a right to
officiate in it without the consent of the major number of the
parochial clergy who have charge of the churches and cures
already existing."
This statement of the learned annotator shows, I think,
1 There is a provision in the canon law applicable to such a case.
Van Espen, after quoting a canon of the Council of Trent, says,
li Whoever will consider the view and intention of the council in these
words expressed, will readily understand that the decree of the council
is fulfilled wherever parishes have not fixed bounds, but have certain
people and certain families, that the Sacraments be not promiscuously
administered, but the priests recognize their own people,'7 (Jur. Ecc.
Un.} Pars. 1, Tit. 3 )
370 OFFICIATING IN THE CURES
the necessity of some legislation upon this matter. Here is a
requisition for the consent of a majority, and a practice to take
that of a few in the vicinity.
Having stated the progress of our legislation on this sub
ject, with the proposed amendments, I proceed to a considera
tion of various questions which arise under the canon. The
1st. 2d and 4th clauses, as I have marked them, should be
considered in connection.
There is no part of the law of the Church which has occa
sioned the author mo-re perplexity ; none more calculated to
excite strong personal feelings, and none which requires a
more thorough interposition of the General Convention.
An important case came before the Standing Committee
in 1849 and 18oO, which led to great discussion of the canony
and no little warmth of controversy. Happily, by the counsel
of friends, the matter was amicably settled. The case had
been anxiously examined by a sub- committee,1 whose conclu
sions upon several points of general interest it may be useful
to state.
The material facts were these :
By a charter of Queen Ann, the whole of Staten Island
was created into the Parish of St. Andrew's, the parish church
being at Richmond. By a colonial act, re-adopted in 1784,
again in 1813 and in 1830, the island was divided into various
towns, with specified boundaries, of which Castleton was one.
Prior to 1832, the parish church of St. Andrew's was the
only church on the island. This was in the town of Rich
mond. But there had been erected a chapel of ease at Factory-
ville, in the town of Castleton, at which the rector of St. An
drew's occasionally officiated.
In this state of things, and in the year 1833, a new
church was organized and incorporated. Its incorporate title
? Rev. Dr. Seabury, Chief Justice Jones3 and the Author.
OF OTHER CLERGYMEN. 371
and name adopted in the act was, " The Rector, Church
wardens and Vestrymen of St. Paul's Church in the Town of
Castleton." By this name it was reported upon favorably by
a committee of the convention, and by this name it was ad
mitted into union in 1834, and delegates from it were re
ceived.
In the year 1849, a new church was organized in what
was termed New Brighton, in the town of Castleton. The
Rector of St. Andrew's attended at the preliminary meetings,
and aided in the incorporation.
The Rector of St. Paul's Church, on a written application
for his assent, convened his vestry, and with their approba
tion declined granting it, and remonstrated against it. Upon
its being incorporated, the new church applied for the sanction
of the Standing Committee for admission into union. The
rector of St. Paul's Church remonstrated against it, and the
subject was sent to a sub-committee for examination.
Upon this state of facts the sub-committee came to these
conclusions:1
1 There was another question of some general interest raised.
There was a great deal of testimony to show, that St. Paul's Church
was almost universally known and spoken of as St. Paul's Church,
Tompkinsville ; indeed, there were several important acts of the ves
try done under that appellation. Tompkinsville was not incorporated
as a village, but was termed such by common repute. It had not any
known or ascertained bounds, yet there could be no difficulty in saying
it did not extend to New Brighton, a village also unincorporated.
Now, undoubtedly, had the church been incorporated for the village
of Tompkinsville, and the boundaries of that village fixed, those would
have been the limits of the parish ; and the author's impression's were,
that it was competent for the committee to enter into a consideration
of the testimony, as the case stood.
But the majority judged otherwise. They considered it very doubt
ful whether we could go behind the title taken in the act of incorpora
tion, and by which the church was admitted into union. They inclined
to the opinion that the convention never meant to use the term village
in a sense capable of so much difficulty, but that the true meaning
was, that the village should be incorporated, or its boundaries other
372 OFFICIATING IN THE CURES
1. That the express permission of the canon, not being re
quired to be in writing, was to be construed as a permission
clearly manifested and established. The permission for the
organization of a new church could be proven by the presence
and participation of the rector at the preliminary meeting ; by
officiating in the new church after its organization ; by acqui
escence with knowledge, in its admission into union ; by the
absence of any remonstrance for a reasonable period of time ;
or by any other satisfactory evidence of approval.
That the assent of the rector of St. Andrew's to the organ
ization of St. Paul's by its corporate title must be assumed from
his failure to remonstrate at the Convention, which admitted
that church, although, as appeared by the journal, he was
present — and from the lapse of so long a period.
2. That but for the existence of the chapel at Factory ville,
the surrender of rectorial jurisdiction for the whole town of
Castleton would have been complete ; and that town would
have formed under the canon, the parish of St. Paul's. But
that the existence of that chapel within the town worked a re
servation of authority in the rector of St. Andrew's — caused the
case to fall within the other clause of the canon ; and thus
there were two churches, with two settled ministers, having,
for the purposes of the canon, co-equal authority. This was
•wise legally settled. And if these propositions were doubtful, they
concluded that the evidence was insufficient to vary the case as it ap
peared on the official records.
As connected with this subject, reference was had to the following
authorities: COWEL'S Interpreter in voce, Statute 13 and 14. Car. 2, c.
12: 1 Inst.. fol. 115. Lord Coke says, "A village must consist de
pluribus mansionibus et vicinis. 5 MAULE & SELWYN, 381. See the
case of the Borough of West Philadelphia, 5 WATTS & SERG. 383. An
act of the legislature empowers the quarter sessions to incorporate any
town or village containing three hundred inhabitants. Ci The words,'7
says Chief Justice Gibson, "do not embrace a champagne country, but
a collection of houses collocated after something like a regular plan in
regard to streets and lanes, without intervening farm land, but with a
convenient curtelage attached to each.'7
OF OTHER CLERGYMEN. 373
subject to the necessary exception of an exclusive power in
each, in his own church-building and precincts, and among
his own people. Of course the rector of St. Andrew's had an
entire right to officiate in the incorporation of Christ Church.
3. That the rector of the parish, who was opposed to the for
mation of a new church, could have no prohibitory redress.
He could not enjoin the worshippers from meeting and going
through the formalities of the statute. Whether he could pre
sent the minister who should officiate previous to such meet
ing (as in New- York is necessary for two Sundays,) must de
pend upon the question whether a minister subsequently offi
ciating was within the canon, or not. If the organization and
incorporation exempted the latter from the operation of the
canon, it must extend to the acts of those who fairly assisted
in the necessary steps to effect that incorporation.
4. That such organization and incorporation did not of itself
entitle the church to admission into a union with Conven
tion. The power to admit or refuse was absolute and unre
stricted in that body, and although in New- York, an incorpo
ration was a pre-requisite to admission, it did not constitute
a title to it.1
1 The following is an extract from the report of the sub-committee
on this point: " Another view which has been presented on behalf of
the applicants is. that the mere fact of an incorporation under the
statute takes the case out of the operation of the canon. With this
view, the committee can by no means agree.
" The incorporation of the church is nothing but the consent of the
civil authority that, upon certain conditions and forms being observed,
the church should be invested with the franchises and privileges of a
corporate body. It is the assent of the state, as far as any powers of
the crown have devolved upon it, to the formation of new churches or
parishes.
"The ecclesiastical organization of a church is entirely distinct.
The government of its ministers is a matter unaffected by the civil
laws. The state never intended, and never should be permitted, to in
terfere with these. The eleventh section of the act of 1784, contains
the sound principle. The precedent in Maryland, in the case of Christ
374 OFFICIATING IN THE CURES
5. That for reasons similar to these which led to this re
sult, as well as other considerations, the statutory incorpora-
Church in 1844. and that of Louisiana in 1848, bear pointedly upon
the question ; and the language of Bishop Onderdonk, in his address of
1840, is very pertinent.
" i Nothing herein contained shall be construed in the least to alter
or change the religious constitutions or governments of either of the
said churches, congregations or societies, so far as respects or in any
wise concerns the doctrine, discipline, or worship thereof.' (Act of
1784.)
"In the case of St. Peters, Bethel Church, New Orleans, in 1848,
an act of incorporation under a law of the state was produced. The
committee reported that if St. Petqp's was an independent congrega
tion, formed as every other has been in New-Orleans, for the accommo
dation of certain members of the laity, who designed to buy lands,
build a church, and afterwards sustain it by the contribution of its
members, the committee did not see any objection to its admission,
but that it was an important fact that St. Peters Church, as presented
for admission, is actually engrafted on a congregation, that was already
gathered by the Rev. Mr. Withall. as a mission station of the city mis
sion of New Orleans, and designed to be for ever a free Church for sea
men and boatmen in New Orleans. The committee proceed to state
various reasons showing that the proposed organization would interfere
with the objects sought by the mission society, and concluded with a
resolution that it was inexpedient to grant the application. In this the
convention concurred.
" In the address of Bishop Onderdonk to the convention of 1840, he
says : c These corporations are indeed composed of members of the
Church, as citizens of the commonwealth. But it should be remem
bered that they avail themselves of this civil privilege as members of
the Church. I presume it will be conceded that there is a fair and
honorable compact with the civil authorities, that when they seek civil
rights in their capacity as a Church institution, it is solely that they
may be exercised for the Church, and in subordination to its principles
and views.'
"The case of Christ Church, Hagerstown, in Maryland, is also in
point. In the minority report, it is said — £ It is asserted that whether
or not a new congregation shall be received as a member of this con
vention is wholly independent of any civil law, but depends exclu
sively upon the canons of the Church, or in the absence of any canonical
provision, upon the mere discretion of the body, to be governed by
questions of expediency. In the general and abstract, the undersigned
are not disposed to dissent from these doctrines, &c.'
" The majority reported, that the proposal to incorporate grew out
OF OTHER CLERGYMEN. 375
tion could not affect or limit any purely ecclesiastical regula
tion for the conduct or duty of ministers. The whole question
was, then, whether the 31st canon, upon received principles
of construction, comprised the case ; and in the judgment of
the committee it did so.
That no injury to the Church, or at least one of a mere
temporary nature, could arise from this view. If the opposi
tion of the minister was unjustifiable, redress, if from no
other quarter, could clearly be had from the diocesan conven
tion. The power to divide parishes, to agree to the formation of
new ones, to the organization and establishment of a new
church, was in that body ; and an act of admission into union
did, in fact, amount to a ratification of the whole proceedings,
and would supersede the application of the canon.1
of dissensions in the parish, and that the object of the parties was to
sit under the preaching of some gentleman with whose doctrines they
could more entirely agree, than with those of the rector of St. John's.
That these were not legitimate grounds of separation of a parish.
" In New-York, upon the remonstrance of the vestry of Trinity
Church, Christ Church, though incorporated, was refused admission into
union at three different conventions.
"Nothing can be more clear or more important, than the distinction
between the ecclesiastical organization and the civil incorporation of a
Church.
"The statute itself recognizes and presupposes that the former is ac
complished to a great extent. But it is not perfect under our system, until
a union with the convention is had. There is no such thing as an in
herent right to admission by reason of having completed a parish or
ganization with a rector and vestry, nor can the statutory incorporation
give such a right."
1 A practical difficulty was seen to exist in New- York and some
other dioceses. There must be an incorporation of the church before
it is admitted into union; and the services of a minister are necessary
at the preliminary meetings for two Sundays. But such minister
would be within the canon — intruding into the cure of another. The
incorporation would be no doubt legal under the statute, but would be
canonically irregular. The decisive answer to this appears to be, that
a difficulty which the convention could remove by a canon, as in Vir
ginia or Maryland, perhaps by special legislation in a particular case,
ought riot to be sufficient to overrule what seemed the true meaning of
the general canon, and actual rights under it.
376 OFFICIATING IN THE CURES
6. That under the canon of this diocese (New- York) the act
of incorporation is to be approved of by the Bishop; and that
power is now vested in the Standing Committee. It would
be a very anomalous proceeding to give such approval, and
then to be compelled to entertain a presentment of a minister
officiating without permission. The consent, therefore, could
not be granted in opposition to the decided written remon
strance of the rector.1
7. And lastly, that they could not enter into the consideration
1 In the first place the terms of the canon are perfectly clear, and
sufficiently comprehensive to include the case. If the policy of the
Church is sound, to protect a clergyman from an unauthorized interfer
ence with his flock, the injury to him will be as great, where a
body of his parishionersis gathered together under the forms of an
organization, as where he is subjected to occasional and broken intru
sions. At any rate this point was one lying on the very surface of the
subject, and the General Convention made no qualification of the gene
rality of its language.
Next, the framers of the canon employed the familiar language of
the English law. " There is no rule of ecclesiastical law/' says Dr.
Burns, "more firmly established than this, that it is not competent for
any clergyman to officiate in any church or chapel within the limits of
a parish, without the consent of the incumbent." (Vol. 1, p. 306.)
" The consent of the incumbent to the erection and use of a Church
or chapel, is requisite," is the language of Lord Stowell. It is an in
ference of the strongest character, that when they used such terms,
with a knowledge that such was the English law, and used them without
qualification or exception, they used them in the sense of that law.
It may be useful on this important point to advert further to the
canon law in relation to this matter, as well as to some authorities in our
own country. It may be observed that in some sense the organization of
a new church, (even in a city,) is the erection of a new parish, or at
least the establishment of a new parochial cure.
By the English law, the consent of the rector of a parish to its divi
sion, or the erection of a new church within its limits, is indispensable.
Lord Stowell, (DUKE OF PORTLAND arid BINGHAM, 1 Cons. R. 161,) says:
" No decision that I know of has gone the length of laying down that
even in the case where the necessity of an increased population was
urgent, and where the consent of the incumbent has been causelessly
and obstinately withheld, the authority of the Bishop could yet be in
terposed to remove the obstruction. When such a case arises, it may
OF OTHER CLERGYMEN. 377
of any objection to the right of the church of St. Paul's to
remonstrate, resting upon the alleged illegality of its own
incorporation. To try such a question indirectly, and after a
require grave consideration to find the proper remedy against so im
proper an abuse of the general right."
This principle is adhered to in the statute of 1 and 2 Victoria, cap.
32, although the division of a parish and building of a new church be
sanctioned by the Bishop, then by the Archbishop, and lastly by the
Queen in Council, yet if the incumbent refuses his consent, it cannot be
completed until a vacancy occurs.
But in this the English law differs from the whole body of the canon
law, and is perhaps founded on the rights to tithes and dues attached to
a cure. It is well settled in the general law of the Church, that new
parishes may be formed, or new churches built in opposition to the
\vill of the rector, if upon hearing him. the Bishop should deem it for
the interest of the Church that it should be done. With this rule a canon
of the Episcopal Church of Scotland coincides." (See ante p. 230.)
" Now in several of our dioceses, this power is expressly asserted to
exist in the diocesan conventions, and is exercised and regulated by
them."
The report proceeded to cite the regulations in Maryland, Virginia,
and Alabama, before stated. (Ante. p. 233.)
"The committee have been referred by the applicants to two cases.
One was in the diocese of South Carolina, four or five years since — the
case of "Grace Church, Charleston." In this instance every thing
necessary for the erection of an edifice had been prepared, when it was
signified to the vestry that a majority of the parochial clergy of
Charleston would object to the officiating of the minister whom the
vestry desired to call. So general had been the construction of the
canon, which gave the power to the city rectors, that at first it was
thought that the enterprise would have to be abandoned. A closer ex
amination of the canon, however, led to the conviction that it was not
intended to affect the erection of new churches, and the organization of
new parishes ; but simply to prevent the officiating of one minister
within the bounds of others' parishes unless permission were first
granted; that so far as any canon of our Church is concerned, the or
ganization of a vestry, even within the bounds of another parish, con
stitutes it a distinct ecclesiastical body, with power to call a minister,
as clear and undisputed, as that which the vestry of the original parish
possesses. The case was thus presented to the parochial clergy ob-
jeciing, and after due deliberation, all opposition was waived upon the
precise ground above stated. Objection was subsequently made to the
* • »
378 OFFICIATING IN THE CURES
formal union with the convention for such a length of time,
^^Hl^.
was wholly inadmissible.
admission of " Grace Church " into union at the meeting of the conven
tion, but it was voted down, and the enterprize succeeded.
" The second instance referred to, occurred in the diocese of Pennsyl
vania,^ 1839-40, in the case of the Church of the Advent, Philadelphia.
That church was organized by laymen from the parish of the Rev .
George Boyd, Rector of St. John's Church, N. L., Philadelphia. They
organized — hired a temporary place of worship near the parent church,
and called the Rev. John J. Kerr as their minister. Dr. Boyd and
others presented the Rev. Mr. Kerr for a violation of canon 31. The
presentment was dismissed by Bishop H. U. Onderdonk, (who, it is re
ported, is the author of canon 31, as it now stands,) on the avowed ground,
that it has no reference whatever to organized parishes, or to the cler
gymen duly called thereby; and that to give such a construction to it
would be to put it in the power of any minister first settled in any city,
township or village, to prevent the extension of the Church therein ; a
thing never contemplated by those who drew and passed the canon, and
one never to be tolerated in a country like ours. At the ensuing dio
cesan convention, when the question came up on " the Church of the
Advent" into union, Dr. Boyd opposed: when under the advice and
opinion of Mr. Horace Binney, the church was admitted on the precise
ground above stated."
" On the other side, in the year 1849, in the diocese of Wisconsin, a
committee appointed in the previous year for preparation of instructions
for the organization, &c., of parishes reported — " That care should be
taken not to interfere with the canonical rights of any other clergyman
by organizing within the .bounds of his parish." The 31st canon is
then quoted, and it is observed — If there be two or more organized
parishes within the above defined boundaries, then the consent of the
major number of the parochial clergy of the said churches or parishes,
must be first obtained. The first step, therefore, to be taken when
about to organize a parish, is to obtain in writing the consent of the
minister or ministers, within whose parochial bounds it is proposed to
organize a new parish. This consent will prevent the possibility of
the minister who may be called to the new parish, being persecuted
for violating the requirements of the general canon above referred to."
This report was submitted to Judge Miller, of the United States
District Court, and approved of by him.
" While the committee look upon the precedents in South Carolina
and Pennsylvania with great respect, they are unable to yield to them
as authorities. The former resolves itself into the opinion of able and
conscientious men, changing their first impressions. The admission
OF OTHER CLERGYMEN. 379
The author ventures to suggest in the note a series of
regulations upon this subject. In his judgment, either the
system should be wholly abandoned, as has been suggested in
Yirginia, or the rules should be freed from what is supposed to
be great obscurity and difficulty.1
into convention in that diocese, and also in the case in Pennsyl
vania, has no weight whatever upon the question. Nothing can be
clearer than the power of a convention to assent to the formation of a
new parish, and thus for the future at least, to prevent the application
of the canon. An admission into union is such an assent. Thus, the
precedent in Pennsylvania is reduced to the strong authority of Bishop
H. U. Onderdonk. But the committee must suggest that the reasons
assigned by him do not seem well founded. The right of a convention
to meet the case by a canonical regulation supplies an answer to
them all."
1 I. A new parish may be established, or a new church or congrega
tion organized within the limits of any parish whose limits are pre
scribed by law or otherwise, or within the limits of any city, town, vil
lage, or borough, in the following manner:
1. Upon the written consent of the minister or rector having charge
of a church or congregation within such limits, when there shall be
but one church or congregation with a minister in charge thereof; or of
the wardens and vestry of such church or congregation, where such
church or congregation is without a minister.
2. Where there are more than one such church or congregation, and
less than four, upon the written consent of a majority of such ministers.
3. And where the namber of such churches or congregations shall
exceed three, then upon the written consent of the ministers of the two
churches or congregations, whose places of public worship shall be the
nearest to the place proposed as the place of worship of such new
parishioners. '
The written consent, in the preceding cases, shall be filed with the
secretary of the Standing Committee previous to any measures being
taken for the organization of such new parish.
In each of the preceding cases, the consent in writing of the eccle
siastical authority must be given to the establishment of such new
parish.
II. If the consent of the minister or ministers as aforesaid is denied
or withheld, application may be made to the ecclesiastical authority
for the establishment of such new parish; of which application two
months' previous notice shall be given to the minister or ministers
whose consent is so denied or withheld.
The decision of the ecclesiastical authority, if in favor of the ap-
380 PERSONS OFFICIATING, NOT MEMBERS
3d. "Under the 3d subdivision of this canon^it may be re
marked, that the inability to perform the services must be
coupled with an unjustifiable refusal of consent to employ
another — that proof of such neglect and refusal must be made
to the Bishop or Standing Committee, and that either of these
may depute persons before whom the proof shall be made.
Again, if by the law of any diocese there should be a set
of persons appointed to hear and decide complaints against
clergymen, that body may receive such proof. This, no
doubt, must be a permanent body, established for such a
purpose. The Ecclesiastical Court appointed in Maryland in
1847 would be of this character.
Next, although the canon declares simply that the church
wardens shall, on proof of the neglect and refusal, have power
to open the doors of the church to any minister, yet no doubt
there must be some formal act of the authority applied to,
sanctioning the proceeding. The proof is to be not only of
inability, but of the refusal, and its reasonableness. There
should be a decision on these points, and some record of such
decision.
TITLE VIIL
OF PERSONS OFFICIATING, NOT MEMBERS OF THE CHURCH.
[CANON XXXVI. General Convention, 1832.]
" No person shall be permitted to officiate in any congre
gation of this Church without first producing the evidences of
his being a minister thereof, to the minister, or in case of a
vacancy or absence, to the churchwardens, vestrymen, or
trustees of the congregation."
The first canon was the 5th of 1792. It was the same as
plication, shall be final; but if otherwise, the case shall be reported to
the convention, with the reasons for withholding an assent, for the
final action of that body.
OF THE CHURCH. 381
the first paragraph as the present one, using the word,
" stranger " instead of "person." There was an additional
clause, that in case any person not regularly ordained should
assume the ministerial office, and perform any of the duties
thereof in this Church, the minister, &c., should cause his
name and offence to be published in as many public news
papers as thought fit.
The 35th canon of 1808, which was the next, differed
only in substituting the word person for stranger.
It is justly remarked by Dr. Hawks, (Cons, and Canons,
333,) that by the other laws of the Church, the person must
be known or proven to be a clergyman, before he can be per
mitted to officiate, and in case he is a foreigner, must produce
a certificate of the Bishop, or Standing Committee. It would
therefore be a case of discipline upon the admitting clergymen
who should permit the services, without being duly and
oanonically satisfied.
25
CHAPTER VI.
OF THE PENAL LAW OF THE CHURCH.
TITLE L
AMENABILITY OF MINISTERS.
[CANON V. of General Convention, 1835.]
" Every minister shall be amenable for offences committed
by him, to the Bishop, and if there be no Bishop, to the cleri
cal members of the standing committee of the diocese, in
which he is canonically resident at the time of the charge."
By the 3d canon of 1804, every minister was made amena
ble to the ecclesiastical authority of the diocese in which he
resided, for any offence committed by him in any diocese.
In Hie 4th caiion of 1829, the words italiclc^d, were omitted.
The 35th canon of 1832, wa. the same as the present.
After a long struggle, commencing in colonial times, the
question has been finally settted of the exclusive liability of a
clergyman to a clerical tribunal. From 1804 to 1832, in
many of the states destitute of a Bishop, there was no
constituted body, except the standing committee, which could
answer to the title of the ecclesiastical authority. In almost
every state, laymen formed part of this committee, and the
trial of a clergyman might be had before them, though not be
fore them solely.
In New- York, for example, by one of the resolutions of
1786, tho convention was the tribunal for the trial of offences,
384 AMENABILITY OF MINISTERS.
and when the sentence was deprivation of office, an appeal was
allowed to the general convention. In the note I have stated
the course in two other states. That in Virginia is peculiarly
instructive.1
1 Journal New-York Convention^ p. 16, ONDERDONK'S ED.
In Maryland, a standing committee was appointed by a canon of
1788, composed of five clergymen, and five laymen, to whom belonged
all matters of government and discipline during the recess of the con
vention. In 1795, and later, the system prevailed, of an examination
into an alleged offence by the standing committee, who reported the
facts to the convention, by which body, composed of clergy and laity,
sentence was passed, which the Bishop pronounced ; but he was only
the organ of the convention in declaring it. (2 HAWKS' Conv. p. 303.
Ibid. p. 316.)
In Virginia the mode was similar. By the act of the Legislature of
1784, the ministers and laymen, met in convention, shall have full
power to remove from a parish any minister accused of unworthy con
duct or neglect of his duties. The convention, however, was prohibited
from making any general rules whereby the minister could be turned
out of his parish without the consent of a majority of the vestry. It
was under this act that the first convention was organized, and its pro
visions were accepted and acted upon. Bishops were amenable to the
convention, which was constituted a court to try them without appeal.
For clergymen, a court was to be established, consisting of three ves
trymen taken from the nearest parishes. (1 HAWKS' Con. App. p.
1. Ibid. p. 7.)
In 1786, this act was repealed. In 1787, the convention adopted an
ordinance embodying many of its provisions, and leaving to the con
vention the power to regulate the Church, its doctrine, discipline, and
worship. The canons of 1785, were then in substance newly enacted.
One of these was, that no Bishop should inflict any censure upon, or
exercise any power, over the clergy under his inspection, other than he
was allowed to do by the laws and institutions of the Church made in
convention.
Through successive variations of details, the principle was retained
of a tribunal composed of clergymen and vestrymen. In 1799. the
canons were revised, and all prior regulations were repealed. This
provision, however, was retained and continued to be the law of the
Church until 1815, when a new body of canons and a constitution were
adopted. The standing committee, consisting of three clerical and
three lay members, was then constituted the court. In the revision of
1823, the same method was preserved. But in 1824, a radical chang e
AMENABILITY OF MINISTERS, 385
In a previous part of this work, I have noticed the attempt
in South Carolina at a very early period to engraft the princi
ple of lay jurisdiction into the code of the Church, the resistance
it met with in the colony, and its decided condemnation in
the House of Lords. The attempts in Maryland were also ad
verted to.
Although, in general, ecclesiastical jurisdiction in England
is administered by laymen, yet the theory of the Church is,
that they are but the deputies of the Ordinary; and act by
delegated authority. The charter of William the Conqueror,
which abolished the holding of pleas in the hundred by the
Bishop, established his Consistory Court in every diocese, and
enabled him to assign to particular persons what share of
Episcopal jurisdiction he thought fit. From this source arose
the authority of chancellor, official, &c.
The Dean of the Arches is the official principal of the
Archbishop of Canterbury.1
took place. The standing committee was directed to inquire into any
allegation against a clergyman ] and if sufficient cause of trial was
found, a council of presbyters, not less than three, was organized under
the direction of the Bishop, for the trial.
1 GIBSON'S Codex, Vol. 2, p. 970. STILLINGFLEET'S Ecc. Ca., p. 237,
etseq. Lord Hale says, "Every Bishop, by his election and confirma
tion, even before consecration, hath ecclesiastical jurisdiction annexed
to his office as Judex Ordinarius, within his diocese." (KALE'S Hist.
Com. Law, 28.) By a constitution of Archbishop Chichely, it was or
dained : " We, following the footsteps of the holy canons, do decree,
that no clerk married, nor bigamist, nor layman, shall upon any pre
tence in his own name, or in the name of any other, exercise any
spiritual jurisdiction," &c.
The statute 37 Henry VIII., c. 17, enacted, that il all or any persons,
whether lay or married, being doctors of the civil law, lawfully create,
who should be appointed to the office of Chancellor, Vicar General,
Commissary, Official or Register, may lawfully exercise all ecclesiasti
cal jurisdiction; " but the statute does not interfere with the appoint
ment of these officers.
The courts are of two classes — those which arise under the Arch
bishop's authority, and those which spring from the Bishop's jurisdic-
386 AMENABILITY OF MINISTERS.
By a canon of the Irish Church, of the year 1634, no
chancellor, commissary, official, or any other person, shall ex
ercise any ecclesiastical jurisdiction over a minister in causes
criminal, unless he himself have been admitted into the holy
order of priesthood. (4 BURN'S Ecc. Law, 686.)
So in Scotland, by the 36th Canon of 1838, the accusa
tion must be brought before the Bishop sitting in Diocesan
Synod, who shall appoint the dean or some other presbyter to
state the charge, and bring forward the evidence, and after a
full hearing and taking the opinion of each member of the
synod, shall pronounce the sentence. An appeal is given to
the college of Bishops.
By the Act 3d and 4th Victoria, cap. 86, the Bishop of
the diocese within which the offence is alleged to have been
committed, may issue a commission of inquiry to five persons,
whether there is prima facie ground for instituting further
proceedings. If the commissioners report that there is ground,
the Bishop himself, or the party complaining, may file articles
in the registry of the diocese. If the party appear and admit
the truth of the articles, the Bishop or his commissary, spe
cially appointed, shall proceed to sentence. If otherwise, the
tion. The first are the Provincial Court of Canterbury, the Court of
Arches, being the Supreme Court of Appeal, the Prerogative or Testa
mentary Court, and the Court of Peculiars. In the province of York is
the Prerogative or Testamentary Court, and the Chancery Court. In
the second class are the Diocesan Courts, being the consistorial court
of each diocese, the court of one or more commissaries appointed by
the Bishop to exercise general jurisdiction within prescribed limits,
the courts of Archdeacons or their officials exercising general or limit
ed jurisdiction according to their patents or local custom. There are
also peculiars having some jurisdiction in various dioceses.
An appeal from the provincial courts lies to the king, who formerly ap
pointed certain persons as delegates to hear it. This court was abolished,
and an appeal given to the Judicial Committee of the Privy Council by an
act of 2d and 3d William IV. An examination of the law, as stated
by Burns and Dr. Phillimore, under the various heads of Archdeacon,
Arches, Chancellor, &c., will establish the proposition in the text.
OF PUNISHABLE OFFENCES. 387
Bishop is to proceed, with the assistance of three assessors,
one of whom must be an advocate of five years standing, or a
sergeant at law, or barrister of not less than seven years' stand
ing, and another shall be the dean of his cathedral church, &c.
The Bishop determines and pronounces sentence there
upon according to the ecclesiastical law. He may also send
the case, by letters of request, to the Court of Appeals of the
province.
TITLE II.
OP PUNISHABLE OFFENCES.
[CANON XXVII. General Convention, 1832.]
" § 1. Every minister shall be liable to presentment and
trial, for every crime or gross immorality, for disorderly conduct,
for drunkenness, for profane swearing, for frequenting places
most liable to be abused to licentiousness, and for violation of
the constitution or canons of this Church or of the diocese to
which he belongs ; and on being found guilty, he shall be ad
monished, suspended, or degraded according to the canons of
the diocese in which the trial takes place, until otherwise pro
vided for by the General Convention.
" § 2. If any minister of this Church shall be accused by
public rumor of discontinuing all exercise of the ministerial
office without lawful cause, or of living in the habitual disuse
of public worship, or of the Holy Eucharist, according to the
offices of this Church, or of being guilty of scandalous, disor
derly, or immoral conduct, or of violating the canons, or preach
ing or inculcating heretical doctrine, it shall be the duty of
the Bishop, or if there be no Bishop, the clerical members of
the Standing Committee, to see that an inquiry be instituted
as to the truth of such public rumor ; and in case of the indi
vidual being proceeded against and convicted, according to
such rules or process as may be provided by the conventions
388 QF PUNISHABLE OFFENCES.
of the several Dioceses, he shall be admonished, suspended, or
degraded, as the nature of the case may require, in conformity
with their respective constitutions and canons."
The first Canon on this subject was the 13th of 1789, the
next the 1st of 1801, then the 25th of 1808, and the 2nd of
1829.
That of 1789 was as follows : — No ecclesiastical person
shall, other than for their urgent necessities, resort to taverns
or other places most liable to be abused to licentiousness.
Further, they shall not give themselves to any base, or servile
labor, or to drinking or riot, or to the spending of their time
idly ; and if any offend in the above, they shall be liable to
the ecclesiastical censure of admonition, or suspension, or de
gradation, as the nature of the case may require, and accord
ing to such rules or process as may be provided, either by the
General Convention, or by the convention in the different
states.
The Canon of 1801 was an addition to the former and con
tained merely an enumeration of some of the particular offences
contained in the 2nd section of the present Canon.
That of 1808 combined the previous provisions, but omit
ted the words " either by the Greneral Convention or," which
are above italicised.
In 1829 the Canon of 1808 was repealed, and one adopted
precisely the same as the 2nd section of the present Canon of
1832, except that the phrase " Ecclesiastical authority " was
used instead of " the clerical members of the Standing Com
mittee."
In general the provision in the Dioceses as to triable
offences is similar to that in South Carolina, which is as fol
lows: — « A clergyman shall be subject to a trial for offences
enumerated in the Canon of the General Convention ' Of
OF PUNISHABLE OFFENCES. 389
Offences for which a Minister shall be Tried and Punished?
and in the Canons of this Convention."1
I have before stated the discussion which took place in
Maryland in 1847, and the objections raised to Canon 5, which
was an enumeration of offences for which a clergyman might
be brought to trial. That Canon was passed, and is as fol
lows : " Every presbyter or deacon of this diocese who shall
wilfully disobey the Constitution, or any Canon of the General
Convention of this Church, or of this diocese, or any rubric,
or shall fall into a general neglect of public worship, or engage
in gaming or any other vicious or corrupting amusement, or
shall frequent places most liable to licentiousness, or commit
any disorderly or scandalous action, or violate any of the
Divine precepts, or his ordination vow, or shall teach or
publicly avow any heretical doctrine, or shall without law
ful cause discontinue the exercise of his ministerial office,
or separate himself from the Communion of the Church, shall
be liable to ecclesiastical trial and censure."
The committee which reported this Canon state, that it
was taken partly from the 37th Canon of the General Conven
tion, and partly from the 17th Canon of the old Maryland
Code, which defines the offences for which a layman is liable
to trial. (Journal 1847, p. 48.)
In like manner in Connecticut by Canon 3, (1825,) it is
enacted as follows : — " Disorderly and immoral conduct, vi
cious or unseemly diversions, neglect of duty, disregard of the
Constitutions and Canons of the General or State Conventions,
or deviation from the rubrics, and disseminating-' or countenan
cing' opinions which are contrary to the doctrines of the Pro
testant Episcopal Church in the United States, are offences
for which a clergyman may be brought to trial."
The committee of Maryland, in their able report upon this
subject, notice the impossibility of enumerating all the offences
1 Article 11. of the Constitution. The same is the form ^Wisconsin.
390 OF PUNISHABLE OFFENCES.
for which a clergyman ought to be subject to censure. That
the same strictness of construction, as in case of crimes against
civil society, is unadvisable here. Dr. Hawks also mentions the
case of Bishop Smith of Kentucky, where it was insisted, that
the general phrase in the first section of Canon 37, " any
crime or gross immorality," was qualified by the subsequent
words ; and that no minister could be tried for any offence
but those enumerated in the section. Hence that there was
no law to try the accused for falsehood, the offence charged.
The court — Bishops Mcllvaine, Kemper and McCoskry — ne
gatived this construction at once, and held that a clergyman
was liable to trial for any offence against religion and morals,
though not specified in any Canon.1
The terms employed in the general canon would appear to
comprehend every possible violation of the positive law of the
Church, and every offence against morals or religion. In the
first place, the phrase " any crime," may be taken in its gen
eral legal acceptation, " the commission or omission of an act
in violation of a public law forbidding or commanding it."2
And yet, it may be urged, that it is to be taken in its more
popular and restricted sense — a violation of what is termed the
moral law.
Again, the phrases, " gross immorality," and " disorderly
conduct," would seem broad enough to embrace every devia
tion from virtue or order, which can reasonably be treated as
censurable by the infliction either of the lowest or highest
grade of punishment. Offences against our own Lex Script a,
the mala prohibita, seem amply provided for in the clause
respecting the constitution and canons of the General or Dio
cesan Conventions.
And yet, how some of these terms are to be interpreted
can only be settled by induction from judicial determinations.
1 Constitution and Canons, 338.
9 STEPHUN 6 Lnminal Law, p. 1. 4 BLACK. Com., 5.
OF PUNISHABLE OFFENCES. 391
And while a full enumeration and specification of offences is
neither practicable, nor would be wise, the author suggests
that some of the clauses in the canons of Maryland and Con
necticut, especially that of "separation from the Church,"
ought to be included.
Indeed, it seems very desirable that the canon of the Gen
eral Convention should be rendered as perfect as possible, and
supersede all canons of the separate dioceses. We might
then expect, in the course of time, to have an approach at
least to uniformity of exposition and settlement of our penal
code.
The cases in New York in 1849, of Dr. Forbes and others,
led to the discussion informally of an interesting point.
A question raised was, whether a presentment for schism
simply, (whatever may be the specifications,) but with no other
offence charged, can be canonicaliy proceeded upon. It is not
whether acts which have been or are treated as schismatical
by the Church may not be punished, but whether the offence
eo nomine is presentable.
It is to be remembered that the party accused must be
found guilty of the charge. If the proof of the specifications
established an offence really presentable, but the charge is not
such, the party must escape. It is also to be noted that
schism is not enumerated among the offences for which a
minister may be brought to trial in any canon of the General
Convention.
The first inquiry is, what is the canonical meaning of the
phrase? I limit my inquiry to its sense in English law. I
have searched in vain for an authoritative definition of it, nor
can I find a proceeding in the English ecclesiastical courts ex-
prtssly for it. Its true meaning I think must be gathered from
the specification of what is pronounced schismatical in the
English standards of rule.
Now in the 9th Canon of 1603, entitled " Authors of
392 OF PUNISHABLE OFFENCES.
Schism in the Church of England censured," it is thus pro-
vided: " whoever shall hereafter separate themselves from the
communion of saints as it is approved by the Apostles' rule in
the Church of England, and combine themselves together in a
new brotherhood, accounting the Christians who are conform
able to the doctrine, government, rites, and ceremonies of the
Church of England, to be profane and unmeet to join in the
Christian profession, let them be excommunicated ipso facto,
and not restored, but by the Archbishop, after their repentance
and public revocation of such their wicked errors."
So in the 10th Canon (1603) entitled, " Maintainers of
Schismatics in the Church of England censured." " Whoever
shall affirm that such ministers as refuse to subscribe to the
form and manner of God's worship in the Church of England,
as prescribed in the Communion Book, and their adherents,
may truly take unto them the name of another church not
established by law, and dare presume to publish that this,
their pretended church, has of long time groaned under the
burden of grievances imposed upon it and upon the members
thereof by the Church of England, let them be excommuni
cated."
The 27th Canon is headed, " Schismatics not to be admit
ted to the Communion." The minister is forbidden to admin
ister it to any that refuse to be present at public prayers
according to the orders of the Church of England, or to any
that are common and notorious depravers of the Book of Com
mon Prayer and administration of the Sacraments, or of any
thing that is contained in any of the articles agreed upon in
Convocation in 1562, or of anything contained in the book of
ordering the Priests and Bishops, or to any that have spoken
against and depraved His Majesty's sovereign authority in
causes ecclesiastical.
Now from the 9th canon it is plainly deducible that a sepa
ration from the Church, by not attending its services, combined
OF PUNISHABLE OFFENCES. 393
with a union with another brotherhood (denomination) is
schism.
This idea of schism is then precisely what in the canon of
Maryland (of 1847) is termed separation from the communion
of the Church, and is made presentable by that canon.
And it is also plain from the English authorities, that the
holding and proclaiming schismatical opinions, that is the as
sertion, that a separation from the communion of the Church
with or without union with another is defensible, is punish
able as the maintaining of schism or schismatics.
The Toleration Acts do not extend to ministers of the
Church so as to enable them, by taking the prescribed oaths,
to free themselves from subjection to the laws of the Church,
although they are freed from the penalties in the statutes of
Uniformity. This is clearly shown in the cases of Carr vs.
Marsh, (2 PHILL., Rep. 253) and the case of Mr. Shore before
cited. So in Keith's case before Lord Hardwicke (2 Ath. 500.)
The defendant was cited into the Bishops Court for officiating
as a clergyman of the Church of England without being
licensed by the Bishop, and was condemned. Lord Hardwicke
said : " The Act of Toleration (1 Wm. <J- Mary, cap. 18) was
made to protect persons of tender consciences, and to exempt
them from penalties ; but to extend it to clergymen of the
Church of England who act contrary to the rules and disci
pline of the Church, would introduce the utmost confusion."
A quere is made by some canonists (apud MOLIN^EUS,
Tome 4, p. 876,) whether schism could exist without heresy,
upon which point see VAN ESPEN, Juris. Ecc. Un., pars, hi.,
cap. 2, § 52.
He notices an important distinction, viz., that if the
schism is joined with heresy, or based upon heresy, the crime
is merely ecclesiastical, and to be determined by the eccle
siastical judge. But if it is schism without heresy, then the
394 OF PUNISHABLE OFFENCES.
secular judge has cognizance of it. This was so declared by
the Concordat of Brabant.1
Now, Lord Mansfield says, that non-conformity was not
punishable by the common law. The offence was the crea
ture of statute. But this must be understood of the punish
ment inflicted by the laws of the state. Non-conformity, by
the law ecclesiastical, has been an offence punishable by the
Church ever since it was founded.
But the question is not as to the power of the Church in
its councils to legislate upon this matter, nor even as to the
power of a Bishop to entertain a presentment, had there been
no legislation, but the material inquiry is, whether the Church
has not actually legislated so as to provide substantially for
the very case.
Now, under the constitution, Dr. Forbes subscribed a de
claration of conformity to the doctrines and worship of the
Protestant Episcopal Church. By the 8th article of the same,
a Book of Common Prayer, when established, was to be used,
&c. Such Book was by authority established, &c. The same
prescribed, and declared the worship of the Church. A
part of the same was an office entitled the Form and Manner
of Ordering of Priests.
Dr. Forbes was ordained a priest, and when so ordained,
he promised and vowed "to give faithful diligence always so
to minister the doctrine and sacrawients, and discipline of
Christ, as the Lord hath commanded, and as this Church has
received the same," &c.
It was capable of proof, that prior to the date of his letter
he had resigned his charge of St. Luke's Church. An allega
tion should be made that he had ceased to minister, following
the words of the ordination vow ; that this was done with, and
was proof of, an intention no longer so to minister, &c. Then,
in further proof, to set forth his letter with its date, declaring,
! See also ATLIFF, p. 480.
MODE OF TRIAL. 395
" that it was his intention no longer to exercise the ministry,
&o," and followed by an allegation that he had ceased from
that time so to minister.
Again, an article of the presentment could certainly be
framed under that portion of the canon which relates to the
discontinuance of the ministerial office, and living in the
habitual disuse of public worship according to the offices of
the Church. This, if made out, was in truth schism in its
sense of separation from the communion of the Church.
When a course of procedure effective and clear appeared
applicable to the case, it seemed very unwise to rest upon a
charge of schism merely.
Yet to unite them, and raise the question for the con
sideration of the Church, might be expedient.
The letter of Dr. Forbes, in its last clause, afforded suffi
cient proof for an article based upon the maintaining schismati-
cal opinions, distinguished from the overt act of schism. He
avows his conviction, that duty to Grod requires him to unite
himself with the Church in communion with the see of Rome.
In the case of the Rev. Mr. Roberts in Indiana, in 1850,
the presentment appears to have been for heresy, schism,
slandor, and a violation of ordination vows.
TITLE in.
MODE OF TRIAL.
The method of presenting an offending clergy- § 1-
man, or of bringing a complaint against him, as PRESENTMENT
f , , OR CHARGE.
well as the inquiry founded on public rumor, has
been left under both sections of the 31st canon of 1832, to
the regulation of the dioceses respectively. The General
Convention has only made one provision upon the subject,
that relating to the service of citations. (Canon 5, 1835, § 2.)
Accordingly the rules adopted vary much in detail, and some
times in principle.
396 MODE OF TRIAL.
In North Carolina, the presentment may be made by the
convention, by the vestry of the parish to which the clergy
man belongs, or by three or more presbyters of the Church.
The charges must be distinctly specified. (Canon of 1817.)
In South Carolina, a charge is first to be made to the standing
committee in writing, under the signature of at least two per
sons, one of whom must be a presbyter of the diocese. If the
standing committee consider the offence charged to be within
the enumerated offences of the General or Diocesan Conven
tion, and that it ought to be presented, they shall present the
same to the Bishop in the following form :
« To the Right Rev. &c.,
" The Standing Committee of the diocese of South Caro
lina, respectfully represent, that A. B. has been accused under
the hand of C. D. and E. F. of having been guilty of (insert
the charge or charges,) and the committee are of opinion that
there is sufficient ground to present the said A. B. for trial,
agreeably to the canon in such case provided." (Canon 3,
Journal 1847.)
The regulation in Georgia, requires the presentment to be
by two or more clergymen, or the wardens or vestrymen of
the Church, to the Bishop, or if no Bishop, to the standing
committee. (Canon 2, Journal 1847.)
In Florida, it is to the Bishop, or if none, to the clerical
members of the standing committee, by the convention, by
the vestry of the parish, or by three or more presbyters of the
Church. The charges must be distinctly specified. (Canon
11, Journal 1846.) In Mississippi, it is to be made to the
Bishop, or if there be none, to the standing committee, in
writing, signed by the party making it, and either by the
convention, by the vestry and churchwardens of the parish, or
by one or more presbyters. (Canon 4, § 1, Journal 1847.)
The course in Ohio, is this : The application is to be made
in writing to the standing committee, with the name of every
MODE OF TRIAL. 397
one engaged in it subscribed thereto. If it appear to the com
mittee that the evidence is sufficient to demand a trial, they
shall forthwith present the clergyman to the Bishop, specify
ing the offence with reasonable certainty as to time, place,
and circumstances. (Canon I, 
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